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C.C.S.M. c. C200

The Consumer Protection Act

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

PART I

INTERPRETATION AND APPLICATION

Definitions

1(1)        In this Act

"advance", in relation to a credit agreement, means value received by a borrower as determined under section 6; (« avance »)

"APR", in relation to

(a) a credit agreement, means the cost of credit under the credit agreement, expressed for disclosure purposes as an annual percentage rate determined in accordance with the regulations, and

(b) a lease, means the APR determined in accordance with the regulations; (« TAP »)

"assignment" includes a transfer of a mortgage; (« cession »)

"borrower" means

(a) a person to whom credit is or will be extended under a credit agreement, and

(b) a hirer of goods on a retail hire-purchase,

including a prospective borrower, and in relation to a mortgage, it also includes a person from time to time deriving title under the original borrower; (« emprunteur »)

"broker" means a person who, for compensation, assists a person in obtaining credit or a lease; (« courtier »)

"brokerage fee" means an amount paid or payable by or on behalf of a borrower — or a lessee, in the case of a lease — to a broker for arranging or attempting to arrange a credit agreement or lease; (« frais de courtage »)

"buyer", except in Part XV (Prepaid Services), includes a hirer on a retail hire-purchase; (« acheteur »)

"cash customer" means a person who buys a product and pays for it in full on or before receiving it; (« consommateur payant comptant »)

"cash price" of a product means

(a) in relation to a sale,

(i) the price agreed on by the parties, or

(ii) if the seller sells the product to cash customers in the ordinary course of business at a lower price, that lower price, and

(b) in relation to an advertisement, the price at which the advertiser offers to sell the product to cash customers or, if the advertiser does not offer the product to cash customers, the price stated in the advertisement,

and, for the purpose of determining the amount advanced under a credit agreement, includes taxes and other charges payable by a cash customer; (« prix au comptant »)

"collateral" means property in which a credit grantor has a security interest for the purpose of securing the payment or performance of a borrower's obligations under a credit agreement; (« biens grevés »)

"collection agent" means any person who

(a) collects or attempts to collect money owing to others, or

(b) is used by others to levy distress or seize goods, or

(c) collects money under any name which differs from that of the creditor to whom the money is owed, or

(d) offers or undertakes to act for a debtor in arrangements or negotiations with creditors or receives money from a debtor for distribution to creditors, or

(e) solicits accounts for collection or offers or undertakes to collect debts for others either immediately or at a future date, or

(f) writes letters, or makes telephone or personal calls on behalf of others for the purpose of inducing a debtor to pay a debt,

but does not include

(g) a person who accepts payment of accounts on behalf of creditors but who does not otherwise negotiate with or in anyway attempt to obtain payment from debtors in respect of the amount owing, or

(h) a bank, or

(i) a credit union, or

(j) a trustee licensed under the Bankruptcy and Insolvency Act (Canada) acting in that capacity, or

(k) a duly appointed officer of a court, or

(l) a barrister or solicitor entitled to practice in Manitoba and acting in that capacity, or

(m) a trust company, or

(n) a person registered under The Real Estate Brokers Act as a real estate broker acting in that capacity, or a person registered under The Real Estate Brokers Act as a salesperson acting in that capacity, or

(o) a person licensed under The Insurance Act as an insurance agent acting in that capacity, or

(p) a person registered under The Mortgage Brokers Act who is acting in the capacity of a registrant under that Act, or

(q) a person appointed under The Corporations Act as a liquidator acting in that capacity; (« agent de recouvrement »)

"common-law partner" of a person means a person who, not being married to the other person, is cohabiting with him or her in a conjugal relationship of some permanence; (« conjoint de fait »)

"consumer services officer" means a person designated under section 72.1 as a consumer services officer; (« agent des services aux consommateurs »)

"cost of credit", in relation to a credit agreement, means the difference between the value given or to be given by the borrower in connection with the agreement, and the value received or to be received by the borrower in connection with it, assuming there is no prepayment or default; (« coût du crédit »)

"court" means the Court of Queen's Bench; (« tribunal »)

"credit agreement" means an agreement or transaction under which credit is, or is to be, extended, including

(a) an agreement for a loan of money,

(b) a mortgage,

(c) an agreement for a credit sale,

(d) an agreement under which loans of money or credit sales may occur in the future, and

(e) an agreement for a line of credit,

and including an agreement to renew a credit agreement; (« contrat de crédit »)

"credit card" means a card or device used to obtain advances under a credit agreement for open credit; (« carte de crédit »)

"credit grantor" means

(a) a person who extends, or will extend, credit under a credit agreement, and includes a prospective credit grantor, and

(b) an assignee of a credit grantor's rights under a credit agreement, if — except in the case of an assignment of a mortgage — the borrower has been given notice of the assignment,

and in relation to a mortgage, it also includes a person from time to time deriving title under the original credit grantor; (« prêteur » ou « fournisseur de crédit »)

"credit sale" means a sale of a product in relation to which all or a part of the purchase price is financed with credit extended by

(a) the seller or manufacturer of the product, or

(b) any other person, if the seller or manufacturer arranges the financing or acts as agent for the other person; (« vente à crédit »)

"debtor" includes a borrower and a guarantor of a borrower's indebtedness; (« débiteur »)

"default charge" means a charge imposed on a borrower — or on a lessee, in the case of a lease —  for a default under a credit agreement or lease, or for a failure to comply with any other obligation under a credit agreement or lease, but does not include interest on an overdue payment; (« frais de défaut de paiement »)

"director" means the person employed by the government under the minister and designated as the director of the office, and includes a deputy of the director; (« directeur »)

"direct seller" means the person who, on behalf of a vendor, makes any offer, solicitation, proposal or approach which is intended to result in a sale to which Part VII applies; (« démarcheur »)

"fixed credit" means credit under a credit agreement that is not open credit; (« crédit à taux fixe »)

"floating rate" means a variable interest rate that is calculated with reference to an index rate, and for this purpose, an interest rate does not cease to be a floating rate merely because it is limited by a minimum or maximum rate or is fixed for a period of time with reference to an index rate at any particular time; (« taux variable »)

"goods" means tangible personal property other than money; (« biens » ou « objets »)

"grace period" means a period during which interest accrues under a credit agreement or lease but becomes payable only if the borrower or lessee fails to meet certain conditions specified in the agreement; (« délai de grâce »)

"high ratio mortgage" means a mortgage on real property under which the amount advanced, together with the amount outstanding under any other mortgage that ranks equally with or prior to the mortgage, exceeds 75% of the market value of the real property; (« hypothèque à coefficient élevé »)

"index rate" means a rate that meets criteria prescribed by the regulations; (« taux indiciel »)

"initial disclosure statement" means

(a) in relation to fixed credit, the statement referred to in section 34.3,

(b) in relation to open credit, the statement referred to in section 35.2, and

(c) in relation to a lease, the statement referred to in subsection 39(1); (« document d'information initial »)

"interest-free period" means a period after an advance is made during which interest does not accrue on the advance; (« période sans intérêt »)

"lease" means an agreement for the hire of goods, except in relation to a residential tenancy agreement; (« bail »)

"legal rate" of interest means the rate from time to time payable under the Interest Act (Canada) on liabilities on which interest is payable but on which no other rate is fixed; (« taux légal »)

"lessee" includes a prospective lessee; (« preneur à bail »)

"lessor" includes a prospective lessor; (« donneur à bail »)

"minister" means the member of the Executive Council charged by the Lieutenant Governor in Council with the administration of this Act; (« ministre »)

"mortgage", "mortgagee", "mortgage money" and "mortgagor" have the meanings assigned to them by The Mortgage Act; (« hypothèque », « créancier hypothécaire », « somme garantie par une hypothèque », « débiteur hypothécaire »)

"non-interest finance charge" means a charge that a borrower — or a lessee, in the case of a lease — is required to pay in connection with a credit agreement or lease, including a premium for title insurance if the borrower is not a beneficiary of the insurance, and a fee for discharging a credit agreement, but not including the following:

(a) interest,

(b) a default charge,

(c) a charge for an optional service,

(d) a charge for an amount under section 6 that constitutes value received by the borrower or lessee,

(e) in the case of a credit sale, a charge that would also be payable by a cash customer,

(f) a charge for a share in a cooperative or a credit union; (« frais financiers autres que l'intérêt »)

"office" means the Consumer Protection Office continued under section 70; (« Office »)

"open credit" means credit under a credit agreement that

(a) anticipates multiple advances, which are to be made at the borrower's request, and

(b) whether or not it sets a credit limit, does not establish the total amount to be advanced; (« contrat d'avance à découvert »)

"optional service" means a service that is offered to a borrower in connection with a credit agreement — or to a lessee, in the case of a lease — but that the borrower or lessee does not have to accept in order to enter into the credit agreement or lease; (« services facultatifs »)

"outstanding balance" in relation to a credit agreement or lease means, at any particular time, the total amount then owing under the agreement or under a promissory note given by the borrower or lessee in connection with the agreement; (« solde impayé »)

"person" includes a partnership and an unincorporated association; (« personne »)

"person entitled to disclosure" means, in relation to a credit agreement,

(a) a borrower, and

(b) an individual whose consent is required under The Homesteads Act; (« personne devant recevoir des renseignements »)

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

"product" means goods or services or both, but does not include the extension of credit; (« produits »)

"retail hire-purchase" of goods means any hiring of goods from a person in the course of his business in which

(a) the hirer is given an option to purchase the goods; or

(b) it is agreed that upon compliance with the terms of the contract the hirer will either become the owner of the goods or will be entitled to keep them indefinitely without any further payment;

except

(c) a hiring in which the hirer is given an option to purchase the goods exercisable at any time during the hiring and which may be determined by the hirer at any time prior to the exercise of the option on not more than two months' notice without any penalty;

(d) a hire-purchase of goods by a hirer who himself intends either to sell them or to re-let them for hire by others unless the goods are intended for resale or re-let in a manner to which Part VII of this Act applies;

(e) a hire-purchase by a hirer who is a retailer of a vending machine or a bottle cooler to be installed in his retail establishment;

(f) a hire-purchase of farm machinery and equipment to which The Farm Machinery and Equipment Act applies;

(g) a hire-purchase in which the hirer is a corporation; and

(h) a hire-purchase of goods by a hirer who himself intends to use them or uses them for the primary purpose of carrying on a business, unless the goods are intended for resale or re-let in a manner to which Part VII applies; (« location-vente au détail »)

"retail sale" of goods or of services or of both means any contract of sale of goods or services or both made by a seller in the course of his business except

(a) any contract of sale of goods or services which are intended for resale by the buyer in the course of his business unless the buyer intends to resell or re-let the goods or services, or both, in a manner to which Part VII applies; and

(b) any contract of sale to a retailer of a vending machine or a bottle cooler to be installed in his retail establishment;

(c) any contract of sale of farm machinery and equipment to which The Farm Machinery and Equipment Act applies;

(d) any contract of sale to a corporation; and

(e) any contract of sale of goods or services intended to be used or used by the purchaser for the primary purpose of carrying on a business, unless the goods or services are intended for resale or re-let in a manner to which Part VII applies; (« vente au détail »)

"sale" includes any transaction whereby the whole or part of the price is paid or satisfied by the exchange of other property, real or personal; (« vente »)

"security interest" means an interest in property that secures the payment or performance of a borrower's obligations under a credit agreement, or a lessee's obligations under a lease; (« sûreté »)

"seller", except in Part XV (Prepaid Services), includes a person who lets goods on hire by a retail hire-purchase; (« vendeur »)

"services", except in Part XV (Prepaid Services), means services or facilities that are or may be provided to a consumer; (« services »)

"term", in relation to the duration of a credit agreement, means the period over which credit is to be extended under the agreement — assuming there is no prepayment or default — and may be equal to or less than the amortization period; (« durée »)

"title insurance" means an agreement to indemnify against damage or loss arising from a defect in title to real property; (« assurance titres de propriété »)

"vendor" means a person who makes, or uses others to make, an offer, solicitation, proposal or approach that is intended to result in a sale or retail hire-purchase to which Part VII (Direct Sellers) applies. (« marchand »)

1(2)        [Repealed] S.M. 1989-90, c. 53, s. 5.

Registered common-law relationship

1(3)        For the purposes of this Act, while they are cohabiting, persons who have registered their common-law relationship under section 13.1 of The Vital Statistics Act are deemed to be cohabiting in a conjugal relationship of some permanence.

Reference to "Act" includes regulations

1(4)         A reference to "this Act" includes the regulations made under this Act.

S.M. 1989-90, c. 53, s. 2 to 5; S.M. 2002, c. 24, s. 13; S.M. 2002, c. 47, s. 30; S.M. 2002, c. 48, s. 28; S.M. 2005, c. 16, s. 3, as amended by S.M. 2008, c. 42, s. 11; S.M. 2006, c. 31, s. 2; S.M. 2009, c. 16, s. 23; S.M. 2011, c. 35, s. 8.

2           [Repealed]

S.M. 1989-90, c. 53, s. 6; S.M. 2005, c. 16, s. 4.

Application of Act

3           Nothing in this Act applies to a credit agreement or lease made by, or any security given to, the Government of Canada or of a province or territory of Canada, or a Crown corporation or agency of one of those governments.

S.M. 2005, c. 16, s. 5; S.M. 2005, c. 28, s. 82.

PART II

CREDIT AGREEMENTS AND LEASES: COST OF CREDIT

DIVISION 1

GENERAL PROVISIONS

APPLICATION OF PART II

Credit agreements for non-business purposes

4(1)        Subject to subsection (3), this Part, except Division 4 (Leases), applies to a credit agreement that is

(a) entered into in the course of a credit grantor's business; or

(b) arranged by a broker;

with an individual primarily for a personal, family or household purpose.

Leases for non-business purposes

4(2)        Subject to subsection (3),

(a) this Division (General Provisions), except sections 5, 12, 18 to 20, 25, 26, 30 and 33 to 33.8;

(b) Division 4 (Leases);

(c) Division 6 (Compensation and Penalties), except section 55; and

(d) Division 7 (Transitional Application of Part II);

apply to a lease entered into in the course of a lessor's business — or arranged by a broker — with an individual primarily for a personal, family or household purpose. References in the applicable provisions of this Division and Division 6 to "credit agreement", "credit grantor" and "borrower" are to be read as including "lease", "lessor" and "lessee" respectively.

Exceptions to subsections (1) and (2)

4(3)        This Part does not apply to a credit agreement or lease

(a) in which any of the borrower's obligations under the agreement, or the lessor's obligations under the lease, are guaranteed by the Government of Canada or of a province or territory of Canada, or a Crown corporation or agency — other than a Crown corporation or agency prescribed by regulation — of one of those governments;

(b) in relation to a reverse mortgage;

(c) in which there is no cost of credit;

(d) in relation to a sale of services by a public utility, as defined in The Public Utilities Board Act, unless the services are sold in connection with a sale of goods to which this Act applies;

(e) for a loan made by an insurer to a policyholder pursuant to a provision of an insurance policy; or

(f) that is exempted by regulation.

Credit agreements and hire-purchases for business purposes

4(4)        This Part applies to

(a) a credit agreement in relation to a sale of goods or services to a person who buys them for business purposes; and

(b) a retail hire-purchase of goods to a person who enters into the agreement for business purposes;

if that person's primary purpose is to resell the goods or services in a transaction to which Part VII (Direct Sellers) applies.

Reliance on signed statement of purpose

4(5)        A signed statement by a party to an agreement or a lease as to the primary purpose of his or her entering into the agreement or lease may be relied upon by the other party if the other party believes in good faith that the statement is true.

S.M. 1989-90, c. 53, s. 7; S.M. 2005, c. 16, s. 6.

Certain credit agreements exempt from this Part

5           Despite subsection 4(1), this Part does not apply to a credit agreement for a credit sale if

(a) the purchase price is payable in full within a fixed period after a written invoice or statement of account is given to the buyer, and no interest is payable for that period;

(b) the payment of the purchase price is unsecured, apart from any lien that may arise by operation of law;

(c) the credit agreement is not assigned in the ordinary course of the credit grantor's business, otherwise than as security for the credit grantor's obligations; and

(d) the buyer is not required to pay any non-interest finance charges.

S.M. 1989-90, c. 53, s. 8; S.M. 2005, c. 16, s. 6.

COST OF CREDIT

Value received by borrower

6(1)        In determining the cost of credit under a credit agreement, the following constitute value received or to be received by the borrower:

(a) money given to or for the benefit of the borrower under the agreement;

(b) the cash price of the goods or services purchased by the borrower from the credit grantor, less any portion that is paid before credit is extended under the agreement;

(c) the amount of a monetary obligation of the borrower that is paid, discharged or consolidated by the credit grantor;

(d) if a credit card or a line of credit is used to obtain money, property or services, the amount charged by the borrower to the credit card account or to the line of credit;

(e) any of the following amounts that the credit grantor incurs in connection with the agreement and charges to the borrower:

(i) a fee paid to a public registry to register information in or obtain information from that registry,

(ii) if property is to be used as security for the performance of the borrower's obligations, a fee for a written report confirming the value, condition or location of the property, or whether it complies with applicable laws, but only if the borrower is given a copy of the report and is free to give it to others,

(iii) a premium for casualty or title insurance on the secured property, if the borrower is a beneficiary of the insurance and the property is insured for its full insurable value,

(iv) a premium for insurance that protects the credit grantor against the risk of default on a high ratio mortgage;

(f) a fee charged by the credit grantor for maintaining a tax account on a high ratio mortgage;

(g) anything designated in the regulations as value received by a borrower in connection with a credit agreement.

Limitation re value received

6(2)        Despite subsection (1), the following constitute value received or to be received by the borrower in connection with a credit agreement only if they relate to an optional service, a fee or amount referred to in clause (1)(e) or (f), or something designated by regulation under clause (1)(g):

(a) insurance provided or paid for by the credit grantor in connection with the agreement;

(b) money paid, an expense incurred or anything done by the credit grantor for the purpose of arranging, documenting, securing, administering or renewing the agreement.

Value given by borrower

6(3)        The following constitute value given or to be given by the borrower in connection with a credit agreement:

(a) money paid or to be paid or property transferred or to be transferred by the borrower to

(i) the credit grantor in connection with the agreement, assuming there is no prepayment or default,

(ii) a person other than the credit grantor in respect of a charge for services that the credit grantor required the borrower to obtain or pay for in connection with the credit agreement, unless the charge is for an amount to which clause (1)(e) or regulations under clause (1)(g) would have applied if it had been incurred initially by the credit grantor and then charged to the borrower, or

(iii) a broker in accordance with section 20.1;

(b) anything designated in the regulations as value given by a borrower in connection with a credit agreement.

Payments re tax account not to be considered

6(4)        Despite subsections (1) and (3), amounts paid into or out of a tax account for a mortgage are not to be considered when calculating the cost of credit and APR.

S.M. 2005, c. 16, s. 6.

GENERAL DISCLOSURE REQUIREMENTS

Requirement to disclose information

7           Every credit grantor who enters into or offers or solicits an offer to enter into a credit agreement must disclose information as required by this Act.

S.M. 2005, c. 16, s. 6.

Form of disclosure statement

8           A disclosure statement

(a) must be in writing or, with the borrower's consent, in an electronic form that will allow the borrower to retain it for later reference;

(b) must express the required information clearly and in a way that is likely to bring the information to the borrower's attention; and

(c) may be a separate document or part of a credit agreement or application for a credit agreement.

S.M. 2005, c. 16, s. 6.

Information based on estimate or assumption

9           Information in a disclosure statement may be based on an estimate or assumption if

(a) the information is not ascertainable by the credit grantor at the time of the disclosure; and

(b) the estimate or assumption is reasonable and is identified in the disclosure statement as an estimate or assumption.

S.M. 2005, c. 16, s. 6.

Time of delivery: delivery by mail

10          A document sent by ordinary mail to a borrower at the mailing address provided by the borrower to the credit grantor is to be considered, in the absence of evidence to the contrary, to have been delivered to the borrower

(a) five days after it was sent if mailed to an address in Canada; or

(b) 10 days after it was sent if mailed to an address outside Canada.

S.M. 2005, c. 16, s. 6.

Application of section

11(1)       This section applies in relation to a credit agreement other than a mortgage that is to be registered under The Real Property Act.

Time for delivery: initial disclosure statement

11(2)       The credit grantor must give the initial disclosure statement for a credit agreement to the borrower before the borrower enters into the agreement or makes any payment in connection with it, whichever occurs first.

Sufficient disclosure — more than one borrower

11(3)       If there is more than one borrower under a credit agreement, a disclosure statement or other document that must be given to the borrower may be given to any of them, and is not required to be given to each of them.

S.M. 2005, c. 16, s. 6.

Initial disclosure statement for a mortgage

12(1)       A credit grantor for a mortgage that is to be registered under The Real Property Act must give an initial disclosure statement, in accordance with section 34.3, to each person entitled to disclosure, at least two days before the earlier of the following:

(a) the day that the borrower first incurs an obligation to the credit grantor in relation to the mortgage, other than an obligation in respect of a charge described in subsection (4);

(b) the day that the borrower first makes a payment to the credit grantor in relation to the mortgage, other than a payment in respect of a charge described in subsection (4).

Determining number of days

12(2)       In determining when the initial disclosure statement must be given under subsection (1), Saturdays and holidays are excluded.

Person entitled to disclosure may waive time period

12(3)       Despite subsection (1), a person entitled to disclosure may waive the two-day period in a manner specified in the regulations. In that case, the credit grantor must give the initial disclosure statement to the person before the first occurrence of an event described in clause (1)(a) or (b).

Charges that do not trigger time period

12(4)       The following charges, if incurred for the purpose of arranging, documenting, insuring or securing a mortgage, are the charges referred to in clauses (1)(a) and (b):

(a) a fee paid to a third party to record or register a document or information in a public registry of interests in real or personal property, or to obtain a document or information from such a registry;

(b) a fee paid to a person for professional services required for the purpose of confirming the value, condition, location or conformity to law of the property that serves as security for the mortgage, if the borrower is given a report signed by the person and is free to give the report to third persons;

(c) a premium for insurance that protects the credit grantor against the risk of default on a high ratio mortgage;

(d) a premium for casualty insurance on the property that serves as security for the mortgage, if the borrower is a beneficiary of the insurance and the insured amount is the full insurable value of the property;

(e) a charge prescribed by regulation.

S.M. 2005, c. 16, s. 6.

Disclosure in advertising to be prominent

13(1)       Information required by this Part to be disclosed in an advertisement must be disclosed prominently.

Prominence of APR disclosure

13(2)       Sections 34.2, 35.1 and 38 require the APR to be disclosed in an advertisement that contains certain other information. When the APR is required to be disclosed under one of those sections, it must be disclosed as prominently, in relation to looking at it, listening to it, or both, as that other information is disclosed.

APR for representative transaction

13(3)       If an advertisement that is required to disclose the APR is not for a specified transaction, the advertisement must disclose the APR for a representative transaction.

S.M. 1989-90, c. 53, s. 9 and 10; S.M. 2005, c. 16, s. 6.

Advertising interest-free periods

14(1)       An advertisement that states or implies that credit is interest-free for a period must disclose whether interest will be payable for the period if certain conditions are not met.

Grace period conditions

14(2)       If interest will be payable for the period if certain conditions are not met, the advertisement must also disclose

(a) those conditions; and

(b) the APR for the period, or, in the case of open credit, the annual interest rate for the period, determined as if those conditions will not be met.

Failure to disclose

14(3)       If the advertisement does not disclose the information required by this section to be disclosed, or does not disclose it as required by section 13 or as may be required by the regulations, the advertised credit is unconditionally free of interest during the relevant period.

S.M. 2005, c. 16, s. 6.

No interest on deferred payment

15          If a credit grantor, when inviting a borrower to defer the payment of an amount due under a credit agreement, does not clearly disclose to the borrower that interest will accrue on the amount during the period of the deferral, no interest is payable on that amount for that period.

S.M. 2005, c. 16, s. 6.

Right to accounting

16          A borrower is entitled, upon request and at no cost, to be given a detailed account of his or her indebtedness from a seller or credit grantor, at least once per year, and at any other time a dispute arises between the parties.

S.M. 2005, c. 16, s. 6.

Inconsistency between disclosure statement and contract

17(1)       Subject to subsection (2), if information in a disclosure statement is more favourable to the borrower than the information or a term set out in the credit agreement, the information in the disclosure statement becomes a term of the agreement and prevails, to the extent of the inconsistency, over any other term of the agreement.

If remedy under section 56 also available

17(2)       If a remedy under section 56 is also available to the borrower, subsection (1) applies only if

(a) an order under subsection 56(3) or (4) is not made; and

(b) the remedy under subsection (1) is more favourable to the borrower than the remedy under section 56.

S.M. 2005, c. 16, s. 6.

PREPAYMENT

Application of sections 18 to 20

18(1)       This section and sections 19 and 20

(a) do not apply in relation to a mortgage registered under The Real Property Act; and

(b) prevail over The Mortgage Act, in the case of a conflict with that Act.

Prepayment of outstanding balance

18(2)       A borrower is entitled to prepay the outstanding balance under a credit agreement at any time, without charge or penalty.

Refund of non-interest finance charge: fixed credit

18(3)       When a borrower prepays the outstanding balance under a credit agreement for fixed credit, the credit grantor must refund or credit to the borrower a portion — to be determined in accordance with the regulations — of each non-interest finance charge that was paid by the borrower or included in the outstanding balance to be prepaid.

Borrower not liable for unearned interest

18(4)       When a borrower prepays the outstanding balance under a credit agreement for fixed credit, he or she is not liable for payment of any unearned interest. For the purpose of this subsection, "unearned interest" includes interest that is not yet payable due to the length of time that the principal has been outstanding.

Surrender of security

18(5)       When a borrower prepays the outstanding balance under a credit agreement for fixed credit, the credit grantor must surrender or discharge any security that it holds for the debt. This is to be done without further charge to the borrower, except that any fee to register a document necessary to effect the surrender or discharge may be charged to the borrower.

S.M. 2005, c. 16, s. 6.

Partial prepayment

19          A borrower is entitled to prepay, without charge or penalty, on any scheduled payment date or at least monthly, a portion of the outstanding balance under a credit agreement.

S.M. 2005, c. 16, s. 6.

Statement of outstanding balance

20          Upon the request of a borrower who wishes to make a prepayment — and at no cost unless a request has been made earlier in the year — the credit grantor must give the borrower a written statement showing

(a) the outstanding balance, including how it was calculated;

(b) the amount, if any, to be credited under subsection 18(3) if the borrower prepays the outstanding balance; and

(c) the net amount required to prepay the outstanding balance, if different from the amount in clause (a).

S.M. 2005, c. 16, s. 6.

BROKERS

No advance payment to brokers

20.1(1)     No broker shall charge a brokerage fee, or require or accept any payment or security from or on behalf of a borrower, for arranging or attempting to arrange a credit agreement for a borrower before the borrower receives or has access to

(a) the proceeds of the credit; or

(b) in the case of a lease, the leased goods.

Return of advance payment

20.1(2)     A broker who contravenes subsection (1) must return to the borrower, on demand, the amount paid or security given by or on behalf of the borrower to the broker.

S.M. 2005, c. 16, s. 6.

Disclosure by broker

20.2(1)     Before assisting a borrower to obtain credit, a broker must give the borrower a written statement, separate from any credit application or credit disclosure statement, that sets out

(a) the broker's name, business address and the telephone number;

(b) the borrower's name;

(c) the amount of the credit — or in the case of a lease, the nature of the leased goods — requested, and the date by which the credit or the leased goods are expected to be available; and

(d) the amount that will be payable to the broker for arranging the credit or lease.

Disclosure of brokerage fee

20.2(2)     When a brokerage fee is charged in respect of a credit agreement, the credit grantor must

(a) disclose the fee in the initial disclosure statement for the credit agreement; and

(b) account for the fee in determining

(i) the APR and the cost of credit, or

(ii) in the case of a lease, the APR.

Failure to disclose

20.2(3)     Neither the credit grantor nor the broker is entitled to receive a brokerage fee from the borrower, and the borrower is entitled to a refund of any brokerage fee paid by or on behalf of the borrower, if

(a) the broker fails to comply with subsection (1); or

(b) the initial disclosure statement does not disclose the brokerage fee as required by subsection (2), or does not include it in determining

(i) the APR and the cost of credit, or

(ii) in the case of a lease, the APR.

Refund of brokerage fee

20.2(4)     A broker or credit grantor who receives a brokerage fee from or on behalf of a borrower but fails to comply with subsection (1) or (2) must refund the brokerage fee to the borrower, on demand.

S.M. 2005, c. 16, s. 6.

Application

20.3(1)     This section applies when a broker arranges a credit agreement for credit — or, in the case of a lease, for leased goods — to be extended by a credit grantor outside the course of the credit grantor's business.

Broker to provide initial disclosure statement

20.3(2)     The broker, rather than the credit grantor, is responsible for providing to the borrower the initial disclosure statement for a credit agreement to which this section applies.

Failure to provide initial disclosure statement

20.3(3)     If the broker fails to provide the initial disclosure statement as required, the broker is not entitled to a brokerage fee and the borrower is entitled, on demand, to a refund of any brokerage fee paid to the broker.

S.M. 2005, c. 16, s. 6.

Partner, director jointly liable

20.4        Every partner and director of a broker who fails to refund a brokerage fee or return an amount or security as required by section 20.1, 20.2 or 20.3 is jointly and severally liable with the broker for any loss suffered by the borrower as a result of that failure.

S.M. 2005, c. 16, s. 6.

Application

20.5(1)     This section applies when a broker arranges a credit agreement for credit — or, in the case of a lease, for leased goods — to be extended by a credit grantor in the course of the credit grantor's business.

Brokerage fee deducted from advance

20.5(2)     If the credit grantor deducts a brokerage fee from an advance, the credit grantor's initial disclosure statement must

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

(b) account for the fee in determining

(i) the APR and the cost of credit, or

(ii) in the case of a lease, the APR.

Credit grantor to ensure accuracy of disclosure

20.5(3)     If the credit grantor authorizes the broker to provide a disclosure statement on its behalf, the credit grantor is responsible for ensuring the accuracy of the disclosure statement.

S.M. 2005, c. 16, s. 6.

INSURANCE

Choice of insurer

21(1)       A borrower who is required to purchase insurance in connection with a credit agreement may purchase it from an insurer of his or her choice. But the credit grantor may reserve the right to disapprove, on reasonable grounds, an insurer selected by the borrower.

Disclosure of borrower's right to choose insurer

21(2)       A credit grantor who offers to provide or arrange insurance for a borrower must notify the borrower, in writing, that the borrower may obtain the insurance through an agent or from an insurer of the borrower's choice.

S.M. 2005, c. 16, s. 6.

Proof of insurance

22(1)       A credit grantor must promptly forward to the insurer an application for insurance that is charged to the borrower. The credit grantor must give proof of the insurance to the borrower as soon as it is effected.

Liability for insurance premium

22(2)       The borrower must pay to the credit grantor the premium payable from the time the insurance policy takes effect to the date the policy, or any extension of it, expires or is cancelled. If the policy is cancelled, the credit grantor must refund to the borrower the amount of the unearned premium.

S.M. 2005, c. 16, s. 6.

OPTIONAL SERVICES

Borrower may cancel optional service

23(1)       A borrower may cancel an optional service of an ongoing nature provided by the credit grantor or an associate of the credit grantor.

Notice period for cancellation

23(2)       To cancel an optional service, the borrower must give the person providing the service at least 30 days' written notice of the cancellation, or any shorter period of notice allowed by the agreement under which the service is provided.

S.M. 2005, c. 16, s. 6.

Liability and refund

24(1)       A borrower who cancels an optional service under this section

(a) is not liable for charges relating to any portion of the service that has not been provided at the time of cancellation; and

(b) is entitled to a refund of any amount already paid for those charges.

Regulations re refund

24(2)       The Lieutenant Governor in Council may, by regulation, establish the manner in which the amount of a refund under this section is to be determined.

S.M. 2005, c. 16, s. 6.

SECURITY FOR CREDIT SALES

Failure to describe collateral for credit sale

25(1)       If the initial disclosure statement for a credit sale fails to include a description of any item of collateral sufficient to identify it as collateral in relation to the sale, the credit grantor has no security interest in that item. But this does not affect the borrower's obligation to pay for the item in accordance with the agreement.

Application to court to correct description of collateral

25(2)       The credit grantor may apply to the court for an order authorizing the correction of an error or omission in the description of collateral in the initial disclosure statement for a credit sale.

Court may authorize correction

25(3)       The court may authorize the correction to be made if it is satisfied that the error or omission was inadvertent and the borrower was not misled by it.

Effect of correction

25(4)       If the initial disclosure statement is corrected with the permission of the borrower or under the authority of a court order, the statement must be treated as if it had been corrected before it was delivered to the borrower.

S.M. 2005, c. 16, s. 6.

Collateral limited to goods sold

26          No part of the credit extended to a borrower on a credit sale may be secured by a security interest in goods unless

(a) the goods were included in the sale; or

(b) if the sale was made under an agreement for open credit, the goods were sold in a previous credit sale under that agreement and have not been fully paid for.

S.M. 2005, c. 16, s. 6.

ASSIGNEES AND GUARANTORS

Assignee of borrower's rights

27(1)       The rights conferred on a borrower by this Act pass to, and may be exercised by, a person claiming through or under the borrower, even if they were not expressly assigned to the person. But the person has no right to receive from the credit grantor any notice or statement required by this Act to be given to the borrower, unless the credit grantor has first been made aware of the person's right to claim through or under the borrower.

Reservation of rights

27(2)       Despite subsection (1), a buyer, when selling or transferring to another person any goods that the buyer acquired on a credit sale or a retail hire-purchase, may reserve, either expressly or by necessary implication, any rights he or she has against the seller under section 58 (statutory warranty).

Assignee's obligations fixed by court

27(3)       When collateral is seized by a credit grantor and an assignee of the borrower applies to the court for relief, the court, as a condition of granting relief, may require the assignee to assume personal liability for the balance owing to the credit grantor.

S.M. 2005, c. 16, s. 6.

Guarantor of borrower's obligations

28          A guarantor of a borrower's obligations may rely on every defence, including a right of set-off, that is available to the borrower in respect of those obligations. But the guarantor cannot use the fact that the borrower is an infant or bankrupt as a defence.

S.M. 2005, c. 16, s. 6.

Assignee of credit grantor's rights

29(1)       The rights conferred on a credit grantor by this Act pass to, and may be exercised by, a person claiming through or under the credit grantor, even if they were not expressly assigned to the person. But an assignee of a credit grantor's rights under a credit agreement has no greater rights or powers than the credit grantor, and is subject to all the duties, powers, obligations and restrictions that apply to the credit grantor.

Limit to borrower's claim against assignee

29(2)       Despite subsection (1), the borrower is not entitled to recover from, or to set off against, the assignee more than the portion of the outstanding balance that was assigned to the assignee. If the assignee further assigns those rights and no longer holds the rights under the agreement, the borrower cannot recover from that first assignee more than the amount, if any, paid by the borrower to that assignee.

Effect of cancellation

29(3)       The cancellation of an agreement by any buyer under Part VII (Direct Sellers) is effective against an assignee of the seller.

Set-off for breach of condition or warranty

29(4)       Subject to subsection 30(2), a breach of a condition or warranty implied by section 58 may be set off by

(a) a buyer against a claim made by an assignee of the seller to the goods, the payment of the purchase price, the cost of credit or rent, or a promissory note given in respect of the purchase;

(b) a holder of a promissory note, whether or not it discloses the purpose for which it was given; or

(c) a person claiming the goods by paramount title to that of the seller, if the person consented, either expressly or by implication, to the seller's selling or letting of the goods.

Maximum amount of set-off

29(5)       The amount that may be set off under clause (4)(a) or (b) may not exceed the amount limited by subsection (2). The amount that may be set-off under clause (4)(c) may not exceed the lesser of

(a) the cash price of the goods; and

(b) the outstanding balance.

S.M. 2005, c. 16, s. 6.

Notice to assignee of credit agreement re credit sale

30(1)       Before assigning the credit grantor's rights under a credit sale, a credit grantor must disclose to the prospective assignee in writing that the credit agreement was for a credit sale.

Innocent assignee's exemption from liability

30(2)       A person who takes an assignment of a credit grantor's rights under a credit sale is not affected by the liabilities and restrictions imposed on a credit grantor in sections 25 and 26 (credit sales), sections 47 to 50 (default on credit sales) or on a seller by Part VI (Statutory Warranties), if the person took the assignment for value and without notice that the credit agreement was for a credit sale.

Onus on assignee

30(3)       The onus is on the assignee to prove that the assignment was taken for value and without notice that the credit agreement was for a credit sale.

S.M. 2005, c. 16, s. 6.

Exemption from liability

31(1)       An assignee of a credit grantor's rights under a credit agreement is liable for compensation or to provide a refund under Division 6 for a contravention of this Act by the credit grantor only if

(a) the assignee knew of the contravention before the borrower received notice of the assignment;

(b) the contravention consists of the credit grantor's failure to deliver a disclosure statement to the borrower when required by this Part; or

(c) the contravention is apparent on the face of a disclosure statement, or by comparing the disclosure statement with the written terms of the credit agreement.

Reliance on borrower's acknowledgment

31(2)       The assignee is entitled to rely in good faith on the borrower's signed acknowledgment of receipt of a disclosure statement.

S.M. 2005, c. 16, s. 6.

Assignment of promissory note

32          When assigning a promissory note that secures or evidences a borrower's obligation under a credit agreement, the credit grantor must provide the assignee with a copy of the agreement.

S.M. 2005, c. 16, s. 6.

RELIEF AGAINST ACCELERATION AND FORFEITURE

Application of sections 33.1 to 33.8

33(1)       Sections 33.1 to 33.8 apply to any debt owing by a borrower to a credit grantor that is payable by instalments, other than

(a) a debt secured on real property;

(b) a debt that arose out of a sale of real property; and

(c) a debt owed by a corporation.

Definition

33(2)       In this section "real property" includes a leasehold interest in real property.

S.M. 2005, c. 16, s. 6.

Default charges: monetary obligations

33.1        No agreement creating or relating to a debt shall provide for a charge to be paid upon a default in the payment of an instalment, unless it reasonably represents one or more of the following costs incurred by the credit grantor as a result of the default:

(a) legal costs incurred in collecting or attempting to collect the amount in arrears;

(b) costs incurred by the credit grantor in protecting the collateral after default or in seizing or holding the collateral or repairing it or preparing it for sale;

(c) costs incurred because a cheque or other payment instrument given by the borrower to the credit grantor was dishonoured.

S.M. 2005, c. 16, s. 6.

Acceleration on default

33.2(1)     Subject to the restrictions set out in subsection (2), a provision in an agreement providing that, in the event of a default in payment of an instalment, the full balance will or may become immediately due and owing is valid and enforceable.

Restrictions on acceleration

33.2(2)     The restrictions referred to in subsection (1) are as follows:

(a) if the debt arises out of a sale of goods or goods and services, or a retail hire-purchase of goods, and the seller has not seized the goods or commenced an action to recover the balance of the debt, the buyer may pay the instalments in arrears plus the default charges as provided in section 33.1, and in that case payment of the balance must not be accelerated by reason of any default so remedied;

(b) if the debt arises out of a sale of goods or goods and services, or a retail hire-purchase of goods, and the seller is entitled to seize the goods and has so seized them, the seller is to proceed in accordance with section 45, and if the buyer redeems the goods in accordance with that section, payment of the balance must not be accelerated by reason of any default so remedied;

(c) if the debt is secured by a chattel mortgage, the mortgagor is entitled to relief from acceleration as provided in section 14 of The Mortgage Act;

(d) in any other case, the borrower may, at any time before an action is commenced to recover the balance of the debt, pay the instalments then in arrears with the default charges on them as provided by section 33.1, and in that case payment of the balance must not be accelerated by reason of any default so remedied;

(e) in any case in which an action has been commenced to recover the balance of the debt, the court may grant relief against acceleration on any terms that it sees fit;

(f) in any case in which a credit grantor is claiming accelerated payment and the borrower does not make the payments required to obtain relief under clause (a), (b), (c) or (d) or is not granted relief under clause (e), the credit grantor may not recover more than the total of

(i) the amount that the borrower would have had to pay in order to prepay the outstanding balance at the time of the default on which the claim for acceleration is based, and

(ii) interest on the amount determined under subclause (i) from the time of default at the rate set out in the credit agreement.

Default after extension

33.2(3)     In any case in which a borrower has been granted an extension of time, the time of default referred to in subclause (2)(f)(i) is the time when the borrower fails to comply with the terms of the extension.

Meaning of "payments in default"

33.2(4)     Except where expressly so stated, references in this Act to payments in default do not include any payments that have become due by virtue of any provision for the acceleration of payments.

Acceleration provisions continue in effect

33.2(5)     A provision for acceleration of payments on default operates from time to time as and when default occurs, and the fact that a borrower has been relieved from acceleration in accordance with this section does not preclude its operation in respect of subsequent defaults.

S.M. 2005, c. 16, s. 6.

Other penalties void

33.3        A provision in an agreement creating or relating to a debt payable by instalments to which this Part applies that imposes on the borrower, as a consequence of default in payment of an instalment, a pecuniary penalty that is not permitted by section 33.1 or 33.2, is void.

S.M. 2005, c. 16, s. 6.

Default charges: non-monetary obligations

33.4        If a borrower defaults on a non-monetary obligation under a credit agreement, the credit grantor may recover from the borrower, as damages for the default, no more than the reasonable expenses incurred and the amount of any loss suffered by the credit grantor because of the default. But if the agreement establishes a monetary penalty for the default, the amount recoverable also cannot be more than the amount of that penalty.

S.M. 2005, c. 16, s. 6.

Relief against acceleration, seizure and forfeiture

33.5         If an agreement creating or relating to a debt imposes on the borrower an obligation in addition to the payment of the debt, and provides that, in the event of a breach of the obligation,

(a) payment of the debt shall be accelerated;

(b) the credit grantor may seize or take possession of any goods; or

(c) the interest of the borrower in any goods is or may be forfeited;

the court may relieve the borrower from the effect of the provision on any terms that it sees fit.

S.M. 2005, c. 16, s. 6.

Absolute discretion of creditor

33.6(1)     A provision in an agreement creating or relating to a debt that gives, or has the effect of giving, the credit grantor the right to decide whether any given fact or circumstance exists, is void.

Powers to preserve security

33.6(2)     Despite subsection (1), an agreement may contain a provision that, if the credit grantor has reasonable cause to believe that the security for the debt is in jeopardy,

(a) payment of the debt shall be accelerated;

(b) the credit grantor may seize or take possession of any goods; or

(c) the interest of the borrower in any goods is or may be forfeited;

or any two or all of those provisions. In that case, it is a question of fact for the court whether or not the credit grantor has reasonable cause for such a belief, but if the credit grantor has such cause at the relevant time, it is immaterial whether or not the security is actually in jeopardy.

Relief against powers

33.6(3)     The court may relieve the borrower from the effect of a provision mentioned in subsection (2) on such terms as it thinks fit.

S.M. 2005, c. 16, s. 6.

Granting relief

33.7        The court may grant relief under sections 33.5 and 33.6 at any time, and may do so either in a proceeding commenced by the credit grantor to enforce security or on an application by the borrower. But if the credit grantor gives the borrower written notice that

(a) specifies the breach complained of, or the facts relied on as giving reasonable cause for the credit grantor's belief, as the case may be;

(b) informs the borrower of his or her right to apply for relief; and

(c) requires the borrower to apply for such relief within 20 days;

the borrower's right to apply for relief expires at the end of those 20 days.

S.M. 2005, c. 16, s. 6.

Staying of seizure or action

33.8(1)     If a credit grantor attempts to seize any goods or commences an action with respect to goods or the payment of money owing in respect of them, and the borrower pays the instalments in arrears, any default charges as provided in section 33.2 and his or her taxable costs in the action, if any, the seizure or action shall be stayed.

Return of seized goods where default remedied

33.8(2)     If a credit grantor seizes any goods and the borrower remedies the default or otherwise obtains relief under this Part, the credit grantor must return the goods to the borrower on payment by the borrower, in addition to any other payment required by this Part, of the costs of seizure in an amount not exceeding that permitted by The Distress Act.

S.M. 2005, c. 16, s. 6.

DIVISION 2

FIXED CREDIT

Application of this Division

34          This Division applies only to advertisements and credit agreements for fixed credit.

S.M. 2005, c. 16, s. 6.

CREDIT SALES

Credit sales must have scheduled payments

34.1        A credit agreement for a credit sale must provide for the outstanding balance to be repaid according to a schedule of payments, which may be subject to adjustments to accommodate contingencies such as a change in the interest rate.

S.M. 2005, c. 16, s. 6.

DISCLOSURE IN ADVERTISING

Disclosure of term and APR

34.2(1)     An advertisement for fixed credit that states an interest rate or the amount of a payment must disclose the APR of the credit and the term over which it is to be extended.

Disclosure of cash price

34.2(2)     If the advertisement is for a credit sale of a specific product, it must also disclose the cash price of the product.

Disclosure of cost of credit

34.2(3)     Subject to the regulations, if the advertisement is for a credit sale involving a non-interest finance charge, it must also disclose the cash price and the cost of credit.

Disclosure for representative transaction

34.2(4)     If the information required by subsections (1) to (3) to be disclosed in an advertisement is not the same for all transactions to which the advertisement relates, the information may be for a representative transaction if the advertisement states that it is for a representative transaction.

S.M. 2005, c. 16, s. 6.

DISCLOSURE STATEMENTS

Initial disclosure statement

34.3        The initial disclosure statement for a credit agreement for fixed credit must be dated and must disclose as much of the following information about the agreement as is applicable:

(a) if the agreement is for a credit sale, a description of each product sold;

(b) the total value received or to be received by the borrower under the agreement, and a breakdown of the total value showing the nature, timing and amount of each advance;

(c) if the agreement provides for scheduled payments,

(i) the total value given or to be given by the borrower under the agreement, and a breakdown of the total value showing the nature, timing and amount of each payment to be made by the borrower,

(ii) the term over which the credit is to be extended, and the outstanding balance at the end of the term if all scheduled payments are made,

(iii) the amortization period, if it is longer than the term, and

(iv) the cost of credit;

(d) the date on which interest begins to accrue and the particulars of any grace period;

(e) the interest rate, and how interest is calculated and compounded;

(f) the method of applying each payment to the accumulated cost of credit and to the principal;

(g) if the interest rate might change during the term,

(i) the initial interest rate,

(ii) the method of determining the interest rate throughout the term, and

(iii) unless the amount of a scheduled payment is adjusted automatically to account for changes in the interest rate, the lowest annual interest rate — based on the initial outstanding balance — at which a scheduled payment would not cover the interest that would accrue between payments;

(h) the APR;

(i) the nature of, and the amount and timing of payments for, each non-interest finance charge;

(j) if the borrower has paid, or is liable to pay, a brokerage fee, the amount of that fee;

(k) the nature of, and the amount and timing of, any default charges;

(l) a description of each item of collateral sufficient to identify it as collateral under the agreement;

(m) for a credit agreement other than a mortgage, a statement that the borrower is entitled to prepay the outstanding balance at any time without charge or penalty and is entitled to make partial prepayments without charge or penalty on any scheduled payment date;

(n) for a mortgage, a statement of the conditions, if any, under which the borrower may make a prepayment, and any charge for a prepayment;

(o) the nature of, and the amount and timing of payments for, any optional services purchased by the borrower for which payment is to be made to or through the credit grantor;

(p) if any optional services are to be provided by the credit grantor or an associate of the credit grantor, a statement of the borrower's right under section 23 to cancel those services;

(q) if the agreement does not provide for scheduled payments, the circumstances in which all or any part of the outstanding balance must be paid, or a reference to the provisions of the agreement that describe those circumstances;

(r) if the lender requires the borrower to obtain insurance as a condition of the credit agreement, a statement that the borrower has the right to obtain the insurance from any insurer authorized by law to provide it;

(s) any additional information prescribed by regulation.

S.M. 2005, c. 16, s. 6.

Periodic disclosure: floating interest rate

34.4(1)     If the interest rate is a floating rate, the credit grantor must give to the borrower, at least once every 12 months, a supplementary disclosure statement containing the following information for the period covered by the statement:

(a) the annual interest rate at the beginning and end of the period;

(b) the outstanding balance at the beginning and end of the period;

(c) if the agreement provides for scheduled payments, the amount and timing of all remaining payments, based on the annual interest rate at the end of the period.

Disclosure: increase in non-floating interest rate

34.4(2)     If the interest rate is not a floating rate, and is increased during the term of the credit agreement to a rate that is at least one percentage point higher than the rate most recently disclosed to the borrower, the credit grantor must give to the borrower within 30 days after the increase a supplementary disclosure statement containing the following information:

(a) the new annual interest rate;

(b) the date the new rate took effect; and

(c) how the amount or timing of any payment is affected by the change.

Failure to disclose increase within 30 days

34.4(3)     An interest rate increase that must be disclosed under subsection (2) is not effective more than 30 days before the day on which it disclosed.

S.M. 2005, c. 16, s. 6.

Additional disclosure: amendments

34.5(1)     If, because of an amendment to the credit agreement, information disclosed under this Division is no longer correct, the credit grantor must give to the borrower, within 30 days after the amendment is made, a supplementary disclosure statement setting out the correct information.

When additional disclosure not required

34.5(2)     The credit grantor need not give a supplementary disclosure statement if the amendment does not result in an increase to the cost of credit or the APR.

S.M. 2005, c. 16, s. 6.

Notice that payments will not cover interest

34.6        The credit grantor must notify the borrower that the scheduled payments will not cover the interest that accrues between payments, if that occurs because of an increase in the principal resulting from a missed or late payment or a default charge. The notice must be given, in writing, within 30 days after the date of the increase.

S.M. 2005, c. 16, s. 6.

RENEWAL OF CREDIT AGREEMENTS OTHER THAN MORTGAGES

Application of section

34.7(1)     This section does not apply in relation to a mortgage registered under The Real Property Act.

Renewing a credit agreement

34.7(2)     When a credit agreement for fixed credit is to be renewed, the credit grantor must deliver to the borrower, on or before the renewal date, a disclosure statement containing the following information:

(a) the renewal date;

(b) the outstanding balance as of the renewal date;

(c) any non-interest finance charges payable in connection with the renewal;

(d) the relevant interest rate information referred to in clauses 34.3(e) and (g);

(e) the APR;

(f) the amount and timing of all payments to be made after the renewal date;

(g) the total of all payments to be made after the renewal date;

(h) the cost of credit under the renewed agreement;

(i) the term over which credit will be extended under the renewed agreement;

(j) the amortization period.

S.M. 2005, c. 16, s. 6.

MORTGAGE RENEWAL

Notice of mortgage renewal

34.8(1)     If the amortization period for a mortgage registered under The Real Property Act is longer than its term, the credit grantor must, at least 21 days before the end of the term, give written notice to each person entitled to disclosure stating whether the credit grantor is willing to renew the mortgage for a further term.

Disclosure on mortgage renewal

34.8(2)     A credit grantor who is willing to renew a mortgage must include with the notice referred to in subsection (1) a disclosure statement containing the following information:

(a) information about the renewal that corresponds with each category of information required under section 34.3, based on the assumption that the borrower will make any payments that are due under the mortgage up to the renewal date;

(b) the renewal date;

(c) the outstanding balance as of the renewal date;

(d) any non-interest finance charges payable in connection with the renewal.

Terms of renewed mortgage differ from disclosure statement

34.8(3)     If the terms of the renewed mortgage differ from the terms set out in the disclosure statement given under subsection (2) in that

(a) the outstanding balance differs from that stated in the disclosure statement due to a missed, late, early or extra payment;

(b) the interest rate differs from that stated in the disclosure statement; or

(c) the amortization period or frequency of payments differs from that stated in the disclosure statement;

the credit grantor must give a revised disclosure statement to each person entitled to disclosure within 30 days after the effective date of the renewed mortgage, containing the correct terms.

Borrower may prepay if no disclosure or incomplete

34.8(4)     If the credit grantor

(a) does not give a disclosure statement to each person entitled to disclosure within the time required by subsection (1); or

(b) gives a person entitled to disclosure a disclosure statement that does not contain all the information required by subsection (2);

the borrower may prepay the outstanding balance of the renewed mortgage without penalty at any time within 21 days after the renewal date of the mortgage.

Borrower may prepay if improper disclosure

34.8(5)     If a credit grantor gives a disclosure statement to a person entitled to disclosure that does not reflect the actual terms of the renewed mortgage, and does not give a revised disclosure statement to that person containing the correct terms in the time period required by subsection (3), the borrower may prepay the outstanding balance of the renewed mortgage without penalty at any time within 21 days after that period expires.

Charges related to renewal to be refunded

34.8(6)     If the borrower exercises a right of prepayment under subsection (4) or (5), the lender must refund to the borrower any non-interest finance charges imposed in connection with the renewal.

S.M. 2005, c. 16, s. 6.

DIVISION 3

OPEN CREDIT

Application of this Division

35          This Division applies only to advertisements and credit agreements for open credit.

S.M. 2005, c. 16, s. 6.

DISCLOSURE IN ADVERTISING

Disclosure: advertisement for open credit

35.1        An advertisement that gives any specific information about the cost of open credit must disclose the current annual interest rate and any non-interest finance charges for the credit.

S.M. 2005, c. 16, s. 6.

DISCLOSURE STATEMENTS

Contents of initial disclosure statement

35.2        The initial disclosure statement for a credit agreement for open credit must be dated and must disclose as much of the following information about the agreement as is applicable:

(a) the credit limit, unless there is none or it is otherwise disclosed in the first statement of account or in a separate statement no later than when the borrower receives the first statement of account;

(b) the minimum periodic payment, or the method of determining it;

(c) the initial annual interest rate and the compounding period;

(d) if the agreement is associated with a credit card, the manner in which interest is calculated;

(e) if the annual interest rate may change, the method of determining the annual interest rate at any time;

(f) when interest begins to accrue on advances or different types of advances, and the particulars of any grace period;

(g) the nature and amount, or the method of determining the amount, of any non-interest finance charges that may become payable;

(h) if the borrower has paid or is liable to pay a brokerage fee, the amount of that fee;

(i) if the agreement is associated with a credit card, the borrower's maximum liability for debts incurred through unauthorized use of the card if it is lost or stolen;

(j) if the borrower purchases an optional service and is required to make payments for it to or through the credit grantor, a description of

(i) the service and the charges for it, and

(ii) the borrower's right to cancel the service under section 23, if the service is to be provided by the credit grantor or an associate of the credit grantor,

unless the description is provided to the borrower in a separate statement before the service is provided or begun to be provided;

(k) if the lender requires the borrower to obtain insurance as a condition of the credit agreement, a statement that the borrower has the right to obtain the insurance from any insurer authorized by law to provide it;

(l) a description of the collateral under the agreement;

(m) the nature and amount, or the method of determining the amount, of any default charges;

(n) how often the borrower will receive statements of account;

(o) a telephone number that the borrower can call for information about his or her account without being charged for the call;

(p) any additional information prescribed by regulation.

S.M. 2005, c. 16, s. 6.

Frequency of statements of account

35.3(1)     The credit grantor must provide the borrower with a statement of account at least monthly. But the credit grantor is not required to provide a statement of account to the borrower at the end of a period during which there have been no advances or payments, if

(a) the outstanding balance is nil; or

(b) the borrower is in default and the credit grantor has demanded payment of the outstanding balance and notified the borrower that the privilege of obtaining advances under the agreement has been cancelled or suspended.

Disclosure in statement of account

35.3(2)     Each statement of account must disclose as much of the following information as is applicable:

(a) the period covered by the statement;

(b) the outstanding balance at the beginning of the period;

(c) the amount, description and posting date of each transaction or charge added to the outstanding balance during the period;

(d) the amount and posting date of each payment or credit subtracted from the outstanding balance during the period;

(e) the annual interest rate or rates in effect during the period or during any part of the period, and the amount of any change in the rate from the previous statement period;

(f) the total of all amounts added to the outstanding balance during the period;

(g) the total of all amounts subtracted from the outstanding balance during the period;

(h) the outstanding balance at the end of the period;

(i) the credit limit;

(j) the minimum payment;

(k) the due date for payment;

(l) the amount that the borrower must pay on or before the due date in order to take advantage of a grace period;

(m) the borrower's rights and obligations regarding the correction of billing errors;

(n) a telephone number that the borrower can call for information about his or her account without being charged for the call;

(o) any additional information prescribed by regulation.

Description of transaction

35.3(3)     A transaction is sufficiently described for the purpose of clause (2)(c) if it enables the entry in the statement of account to be matched to a transaction record provided to the borrower along with the statement of account or at the time of the transaction.

S.M. 2005, c. 16, s. 6.

CREDIT CARDS

No issuance of unsolicited credit cards

35.4(1)     No person shall issue a credit card to a person who has not applied for it, unless the card is being issued under a credit agreement to renew or replace a card previously issued under that agreement.

Onus of proof

35.4(2)     The onus of proving that the person applied for a credit card is on the person who issued the card.

S.M. 2005, c. 16, s. 6.

Rates and fees to be disclosed in solicitation

35.5(1)     No person shall directly solicit another person, in person, by mail, or by phone or other electronic means, to apply for a credit card, unless the interest rate and other fees in effect at the time of solicitation are prominently disclosed.

Application for credit card

35.5(2)     An application form for a credit card must disclose

(a) the following information, and the date to which each is current:

(i) if the interest rate is a floating rate, the index rate and the relationship between it and the annual interest rate,

(ii) the annual interest rate, if it is not a floating rate,

(iii) the grace period, if any,

(iv) the amount of any non-interest finance charges; or

(b) a telephone number that the applicant can call to obtain the information referred to in clause (a) without being charged for the call.

Time of disclosure

35.5(3)     If a borrower applies for a credit card in person, or by telephone or any electronic means, the card issuer must disclose the information referred to in clause (2)(a) when the borrower makes the application.

Requirement for initial disclosure statement

35.5(4)     Nothing in this section relieves a credit card issuer from the obligation to provide an initial disclosure statement under section 35.2.

S.M. 2005, c. 16, s. 6.

Time of entering into credit agreement

35.6        A person who applies for a credit card without signing an application form is considered to enter into a credit agreement in relation to that card upon using the card for the first time.

S.M. 2005, c. 16, s. 6.

Prior notice of change in information

35.7(1)     No change in the information disclosed to a credit card holder in a disclosure statement shall take effect until at least 30 days after the holder has been given notice of the change, unless the change is

(a) a change in the credit limit;

(b) a decrease in the interest rate or the amount of any other charge;

(c) an increase in the length of an interest-free period or grace period; or

(d) a change in a floating rate.

Other notice of changes

35.7(2)     A change described in any of clauses (1)(a) to (d) must be disclosed to the credit card holder in the first statement of account to follow the change, or in a separate document that accompanies the statement.

S.M. 2005, c. 16, s. 6.

Liability for unauthorized use of lost or stolen card

35.8(1)     Subject to subsection (2), if a credit card is lost or stolen, the card holder

(a) is not liable for any debt incurred through unauthorized use of the card after the card issuer is notified of the loss or theft; and

(b) is liable for no more than a total of $50., or any lesser amount set out in the credit agreement, for debts incurred through unauthorized use of the card before the card issuer is notified of the loss or theft.

Regulations may exempt transactions

35.8(2)     Subsection (1) does not apply in respect of a transaction prescribed by regulation.

Liability for unauthorized use of credit card information

35.8(3)     A credit card holder is not liable for a debt incurred through unauthorized use of credit card information if, within 30 days after the date of issue of the first statement of account to include the debt, the holder notifies the credit card issuer of any unauthorized use.

Form of notice

35.8(4)     Notice of the loss or theft of a credit card, or of an unauthorized use of credit card information, may be given orally or in writing.

Onus of proof

35.8(5)     Except in the case of a transaction prescribed in the regulations, the onus of proving that the person using a credit card or credit card information was authorized to do so is upon the issuer of the card.

S.M. 2005, c. 16, s. 6.

Surrender of credit card

35.9(1)     When a credit card holder surrenders a credit card to the issuer or agent of the issuer of the card, the issuer or agent must give the holder a receipt for the card. If it is surrendered to an agent, the agent

(a) must promptly forward the card to the issuer, notifying the issuer of the surrender; and

(b) is responsible for any unauthorized use of the card between the time the card is surrendered and the time it is received by the issuer.

Holder not liable after surrender of card

35.9(2)     The credit card holder is not liable for any debt incurred through the unauthorized use of a credit card after he or she has surrendered it to the issuer or an agent of the issuer of the card.

S.M. 2005, c. 16, s. 6.

DIVISION 4

LEASES

GENERAL PROVISIONS

Definitions

36          The following definitions apply in this Division.

"cash value" of leased goods means

(a) the price for which the lessor sells like goods to cash customers or, if the lessor does not sell like goods to cash customers, the lessor's reasonable estimate of the price that cash customers would pay for the leased goods; or

(b) any lower amount that the lessor and the lessee agree is the cash value. (« valeur au comptant »)

"estimated residual value" of leased goods means the amount reasonably estimated by the lessor at the beginning of the lease to be their wholesale value at the end of the lease. (« valeur résiduelle estimative »)

"option price" means the amount of an additional payment a lessee must make to exercise a purchase option. (« prix de l'option »)

"periodic payments" means the payments, other than taxes, that a lessee is required to make at regular intervals under a lease. (« versements périodiques »)

"purchase option" means an option under a lease for the lessee to acquire title to the leased goods at or before the end of the lease. (« option d'achat »)

"residual obligation" means a lessee's obligation to pay to the lessor, at the end of a lease, an amount based wholly or partly on the difference, if any, between

(a) the realizable value of the leased goods at the end of the lease; and

(b) the estimated residual value of the leased goods. (« obligation résiduelle »)

"term", in relation to the duration of a lease, means the period during which the lessee is entitled to possession of the leased goods, assuming no default under the lease. (« durée »)

S.M. 2005, c. 16, s. 6.

Application of this Division

37          Subject to subsection 4(2), this Division applies to a lease that

(a) has a fixed term of at least four months;

(b) has an indefinite term;

(c) is renewed automatically if neither party does anything to prevent its renewal; or

(d) has a residual obligation;

and that is not exempted by regulation from the application of this Division.

S.M. 2005, c. 16, s. 6.

DISCLOSURE IN ADVERTISING

Lease advertising

38(1)       An advertisement that gives any specific information about the cost of a lease must disclose the following information:

(a) that the advertised transaction is a lease;

(b) the term of the lease;

(c) the amount and timing of any payments that would be required at or before the beginning of the term;

(d) the amount and timing of the periodic payments;

(e) the amount of any other payments, other than taxes, that a lessee would be required to make in the ordinary course of events;

(f) the APR of the lease;

(g) if required by regulation, prescribed information regarding extra charges based on use of the leased goods.

Representative transaction

38(2)       If the information to be disclosed under subsection (1) is not the same for all leases covered by the advertisement, the information disclosed may be for a representative transaction if the advertisement states that it is for a representative transaction.

Advertising in prescribed medium

38(3)       Despite subsection (1), an advertisement on radio or television or in a medium prescribed by regulation may, instead of disclosing the lease's term and APR, disclose

(a) a telephone number a person can call to obtain the information without incurring any charge for the call;

(b) the address of an Internet website that contains the information; or

(c) a reference to a publication with general circulation in the area of the advertisement's reach that contains the information.

Records to be kept for three months

38(4)       A lessor who advertises a telephone number or website address where the information to be disclosed can be obtained must keep, for at least three months after the advertisement is last publicized, a copy of the telephone script or Internet document that contains the information.

Director entitled to copy of record

38(5)       On request of the director, a lessor must provide a copy of a record described in subsection (4) to the director.

S.M. 2005, c. 16, s. 6.

DISCLOSURE STATEMENTS

Initial disclosure statement

39(1)       The initial disclosure statement for a lease must disclose as much of the following information about the lease as is applicable:

(a) that the transaction is a lease;

(b) a description of the leased goods;

(c) the term of the lease;

(d) the cash value of the leased goods at the beginning of the lease;

(e) the nature and amount of any advances received or charges incurred by the lessee at or before the beginning of the term;

(f) the nature and amount of each payment made or to be made by the lessee at or before the beginning of the term;

(g) the amount to be capitalized under the lease, which is

(i) the total of the cash value of the leased goods and any advances made or to be made to the lessee at or before the beginning of the term,

less

(ii) the total of the amounts paid or to be paid by the lessee at or before the beginning of the term, not including any refundable security deposit or any of the periodic payments;

(h) the amount, timing and number of the periodic payments;

(i) the estimated residual value of the leased goods;

(j) if the lease has a purchase option,

(i) how and when the option may be exercised,

(ii) the option price if the option is exercised at the end of the term, and

(iii) the method of determining the option price if the option is exercised before the end of the term;

(k) if the lease has a residual obligation, the amount of the obligation or the method of determining the amount;

(l) any circumstances under which either party may terminate the lease before the end of the term, and the amount, or method of determining the amount, of any payment that the lessee will be required to make on early termination of the lease;

(m) any circumstances in which the lessee may be required to make a payment not referred to in clauses (a) to (l), and the amount of the payment or the method of determining the amount;

(n) the APR of the lease;

(o) if the lessee has paid, or is liable to pay, a brokerage fee, the amount of that fee;

(p) the nature of, and the amount and timing of payments for, any optional services purchased by the lessee for which payment is to be made to or through the lessor;

(q) if any optional services are to be provided by the lessor or an associate of the lessor, a statement of the lessee's right under section 23 to cancel those services;

(r) the total of all non-refundable payments made or required to be made by the lessee in connection with the lease in the ordinary course of events;

(s) the implicit finance charge, as determined by the following formula:

I = A + B − C

In this formula,

I

is the implicit finance charge,

A

is total of the non-refundable payments referred to in clause (r),

B

is

(i) if the lease has a purchase option, the option price or the estimated residual value, whichever is less, or

(ii) if it does not have a purchase option, the estimated residual value plus any additional amount payable in the ordinary course at the end of the term,

C

is the total of all advances made to the lessee in connection with the lease;

(t) any other information required by the regulations.

Additional disclosure: amendments

39(2)       If information disclosed under this Division is no longer correct because of an amendment to the lease, the lessor must deliver to the lessee, within 30 days after the amendment is made, a supplementary disclosure statement setting out the correct information.

Additional disclosure not required

39(3)       The lessor need not give a supplementary disclosure statement if the amendment does not result in an increase to the APR.

S.M. 2005, c. 16, s. 6.

Maximum residual obligation determined by regulation

40          A lessor is not entitled to require or accept, in respect of a residual obligation, the payment of an amount greater than the maximum residual obligation calculated in accordance with the regulations.

S.M. 2005, c. 16, s. 6.

Effect of remedying default

41          When a lessee remedies a default under a lease, the lease is reinstated as if the default had not occurred, and the lessor cannot later deny any right that the lessee would otherwise have had to purchase the leased goods or to retain possession of them at the end of the lease.

S.M. 2005, c. 16, s. 6.

DIVISION 5

DEFAULT GENERAL PROVISIONS

Application of Division

42          This Division does not apply in relation to a mortgage registered under The Real Property Act.

S.M. 2005, c. 16, s. 6.

Rights and remedies cumulative

43(1)       The rights and remedies in this Division are in addition to, and do not affect, the rights and remedies provided for in an agreement, elsewhere in this Act, in any other Act, or at law.

Conflict

43(2)       If there is a conflict between a provision of this Division, or a regulation made in relation to such a provision, and a provision of an agreement or of any other Act, the provision of this Division or the regulation prevails.

S.M. 2005, c. 16, s. 6.

SEIZURE AND SALE

Restriction on seizure if less than 25% owing

44(1)       If a borrower defaults on a credit agreement when the outstanding balance secured by collateral is less than 25% of the total of the amounts advanced under the agreement, the credit grantor is entitled to seize or repossess the collateral only with

(a) the court's approval, which may be given on any terms the court thinks fit; or

(b) the borrower's written consent, given at the time of the seizure or repossession.

Application without notice

44(2)       The court may, without notice to the borrower, approve an application made under this section if

(a) the borrower cannot be found or is evading service;

(b) there is reasonable cause to believe that the borrower might hide the goods or otherwise attempt to avoid seizure or repossession of them if he or she had notice of the application; or

(c) the court for any other reason sees fit to dispense with the notice.

Notice to borrower

44(3)       A credit grantor who obtains the court's approval under this section without notice to the borrower must give to the borrower, at the time of seizing or repossessing the goods, or as soon after that as is possible,

(a) a copy of the court order;

(b) a notice, in a form approved by the judge who made the order, of the borrower's rights under subsection (4) to apply to have the order set aside; and

(c) notice of the seizure or repossession, containing the information required under subsection 45(1).

Application to set aside order made without notice

44(4)       Within 20 days after being given a copy of the order and the notices under subsection (3), the borrower may apply to the court to have the order set aside. The court may make any order it thinks fit having regard to all the relevant circumstances.

S.M. 2005, c. 16, s. 6.

Notice of seizure

45(1)       Within 48 hours after seizing or repossessing collateral under a credit agreement, the credit grantor must give the borrower a written notice of seizure setting out the following:

(a) a description of the collateral and the date that it was seized or repossessed;

(b) the place where the collateral is or will be kept;

(c) a description of the borrower's default, and the sums in arrears, ignoring the operation of any acceleration clause in the agreement;

(d) the amount that will be charged to the borrower in accordance with this Part because of the default or, if the amount has not been determined, a reasonable estimate of that amount;

(e) the outstanding balance under the agreement, excluding the amount referred to in clause (d);

(f) if the borrower is entitled to cure the default and reinstate the credit agreement,

(i) the action that the borrower must take to cure the default, and

(ii) a statement that the borrower may cure the default and reinstate the credit agreement by taking that action at any time before the collateral is sold or retained by the credit grantor in satisfaction of the obligation secured by it;

(g) a statement that the collateral will not be sold for at least 20 days.

Notice of sale

45(2)       At least 20 days before disposing of the collateral, the credit grantor must give the borrower a notice of sale that sets out the following:

(a) all of the information to be included in the notice of seizure of the collateral;

(b) the following particulars of a proposed sale of the collateral:

(i) if it is to be sold by public auction, the date, time and place of the auction,

(ii) if it is to be sold by acceptance of a closed tender, the deadline for delivery of closed tenders and the place to which they must be delivered,

(iii) if it is to be sold privately or in the course of the credit grantor's business, the date after which it may be sold.

Combined notice

45(3)       The notices under subsections (1) and (2) may be combined into one notice of seizure and sale, which must be given to the borrower within 48 hours after the collateral is seized or repossessed and at least 20 days before it is sold.

Notice to persons other than the borrower

45(4)       In addition to giving a notice to the borrower under subsection (2) or (3), the credit grantor must, at least 20 days before selling the collateral, give a copy of the notice to each person who

(a) has registered a financing statement in relation to the collateral in the registry established under The Personal Property Security Act; or

(b) has an interest in the collateral and has given written notice of that interest to the credit grantor.

S.M. 2005, c. 16, s. 6; S.M. 2008, c. 42, s. 10.

CREDIT SALES

Demand payments prohibited

46          A credit agreement for a credit sale must not provide that the balance owing, or any part of it, is payable on demand. A credit sale that purports to do so takes effect as an immediate sale, with the property in the goods passing to the borrower on delivery, and without the credit grantor having a lien on the goods. But this does not affect the borrower's obligation to pay for the goods in accordance with the agreement.

S.M. 2005, c. 16, s. 6.

Credit grantor may sue or seize

47(1)       The credit grantor under a credit sale may enforce payment of the outstanding balance in only one of the following ways:

(a) by suing for all or any part of the outstanding balance;

(b) by enforcing the credit grantor's security interest in the collateral.

Credit grantor's rights restored

47(2)       If after collateral under a credit agreement has been seized

(a) the agreement is reinstated; or

(b) the collateral is returned to the borrower under a court order;

the credit grantor's right to sue or seize is restored as if the seizure had not occurred.

S.M. 2005, c. 16, s. 6.

Judgment extinguishes security interest

48(1)       When a credit grantor obtains a judgment for all or any part of the outstanding balance under a credit sale,

(a) the credit grantor's security interest in the collateral that secured the outstanding balance is extinguished; and

(b) the credit grantor's title to the collateral, if any, passes to the borrower.

Seizure to enforce judgment

48(2)       If any of the goods that comprised the collateral before a judgment was issued are seized in the enforcement of the judgment,

(a) the credit grantor's right to recover under the judgment is limited to the amount realized from the sale of those goods;

(b) if the sale proceeds exceed the amount of the judgment and the costs of execution, the credit grantor must pay the excess as follows:

(i) if the judgment is for only part of the outstanding balance, into court, to be paid out as to the court thinks fit,

(ii) if the judgment is for the outstanding balance, to the borrower or to subsequent execution creditors, as their interests may appear; and

(c) if the judgment is for only part of the outstanding balance, the credit grantor's right to sue for the balance is extinguished.

Relief from acceleration

48(3)       If the credit grantor applies an acceleration clause when suing for the outstanding balance and the court relieves the borrower from the acceleration, the court may do one or both of the following:

(a) exempt some or all of the collateral from the operation of subsection (1);

(b) exempt the credit grantor in whole or in part from the application of subsection (2).

S.M. 2005, c. 16, s. 6.

Exemption: goods not found

49          If only some of the goods that comprised the collateral under a credit agreement, or of the goods that comprised the collateral before a judgment was obtained, are repossessed because the person repossessing them cannot find all of the collateral, the court may, on application of the credit grantor, exempt the credit grantor in whole or in part from the application of subsections 47(1) and 48(2).

S.M. 2005, c. 16, s. 6.

Right of recovery: goods destroyed or damaged

50(1)       If any item of collateral under a credit sale, or of the goods that comprised the collateral before a judgment was obtained, has been destroyed or damaged by a deliberate act or by wilful neglect of the borrower, the credit grantor may recover from the borrower the lesser of the following amounts:

(a) the balance owing under the agreement or judgment, as the case may be;

(b) the value of the item had it not been destroyed, or of the damage done.

Right of recovery: removed or replaced goods

50(2)       If an item of collateral under a credit sale, or of the goods that comprised the collateral before a judgment was obtained, is seized and the borrower has removed an accessory or component of the item and not replaced it with one of a similar kind and value, or has replaced it with one that is subject to a security interest of another person, the credit grantor may recover from the borrower the least of the following amounts:

(a) the value of the removed accessory or component, allowing for depreciation up to the date of the seizure;

(b) the amount of the debt obligation to the other person that is secured by the accessory or component;

(c) the amount by which the proceeds of sale of the items seized fall short of the balance owing under the agreement or the judgment and costs of execution.

S.M. 2002, c. 24, s. 13; S.M. 2005, c. 16, s. 6.

SALE OF REPOSSESSED GOODS OR COLLATERAL

Sale of repossessed goods or collateral

51(1)       If a credit grantor has lawfully repossessed goods or items of collateral under a credit agreement and the borrower has not redeemed them within the time allowed for that purpose, the credit grantor may resell them.

Price for resale of collateral

51(2)       A credit grantor who resells goods or collateral must

(a) act in good faith; and

(b) upon selling the goods or collateral, give a complete accounting of the sale to the borrower, including such detail as may be required by the regulations.

Payment of excess

51(3)       If the amount realized on the sale of the goods or collateral exceeds the total of

(a) the outstanding balance;

(b) the expenses of taking and keeping possession, including any repairs necessary before the resale; and

(c) the expenses of the resale;

the credit grantor must pay the excess in accordance with subsections 60(2) and (4) of The Personal Property Security Act.

Charge of overhead

51(4)       If the credit grantor resells the goods or collateral by retail sale in the ordinary course of his or her business, the credit grantor may charge, as an allowance for the overhead expenses of resale, 20% of the proceeds of the sale.

Retention in lieu of resale

51(5)       A credit grantor who is unable to resell the goods or collateral at a price sufficient to satisfy the balance owing plus the expenses referred to in subsection (3) may keep the goods or collateral and use them as he or she sees fit.

S.M. 2005, c. 16, s. 6.

DIVISION 6

COMPENSATION AND PENALTIES

Remedies are cumulative

52(1)       The remedies under this Division are in addition to and do not affect any other right or remedy that a borrower or a lessee has under an agreement or at law.

Provisions apply to lessors and brokers

52(2)       In sections 53 and 54,

(a) "credit agreement" includes a lease;

(b) "credit grantor" includes a lessor and a broker; and

(c) "borrower" includes a lessee.

S.M. 2005, c. 16, s. 6.

Refund of payments

53          A credit grantor must refund to a borrower any amount that, because of a breach of this Part by the credit grantor, the borrower was not required to pay or the credit grantor was not entitled to receive. With the borrower's consent, the credit grantor may, instead of refunding it, credit it to the outstanding balance of the credit agreement as of the time the payment was made by the borrower.

S.M. 2005, c. 16, s. 6.

Compensation

54(1)       A credit grantor who breaches any provision of this Part must compensate the borrower for any loss the borrower suffers because of the breach. For the purpose of this section, "loss" includes any costs reasonably incurred by the borrower, including legal and other professional fees, in pursuing his or her legal rights in response to the breach.

Set-off or recovery of compensation

54(2)       A borrower who is entitled to compensation under this section may set it off against the outstanding balance of the relevant credit agreement, or recover it in an action.

S.M. 2005, c. 16, s. 6.

Rebate of part of cost of credit

55(1)       If the goods purchased on a credit sale are not delivered, or services to be provided under a credit sale are not commenced to be provided, within seven days after the date agreed upon for delivery or commencement or, if no such date was agreed upon, within seven days after the date of the agreement, no interest is payable by the borrower on the outstanding balance for the period before the goods are delivered or the services are commenced to be provided.

Rights preserved

55(2)       Nothing in this section affects the borrower's right, if any, to rescind or cancel an agreement for late delivery of goods or performance of services.

S.M. 2005, c. 16, s. 6.

Incorrect disclosure statement

56(1)       Subject to the Interest Act (Canada) and to subsections (2) to (5), if a disclosure statement required under Division 2, 3 or 4 of this Part, other than under section 34.2, 35.1 or 38,

(a) does not, though required, contain a statement of the interest rate or APR;

(b) understates the APR by more than the margin permitted by the regulations;

(c) for fixed credit, omits or incorrectly states any of the information required by clause 34.3(b), (c), (i), or (o) or subclause 34.3(g)(ii);

(d) for open credit, omits or incorrectly states any of the information required by clause 35.2(a), (b), (c), (d), (e), (g) or (n); or

(e) for a lease, omits or incorrectly states any of the information required by clause 39(1)(e), (f), (g), (p), or (r);

the credit grantor may collect from the borrower only an amount equal to the lesser of the cash price or the amount that remains owing from time to time, plus simple interest at the legal rate. The interest is to be applied and calculated from the date of the document. If the borrower has paid the credit grantor more than the amount determined under this subsection, the credit grantor must refund to the borrower that excess amount.

Director's order re contravention

56(2)       On the application of the credit grantor or the borrower, the director may make an order declaring whether a contravention described in any of clauses (1)(a) to (e) has occurred, and if so, whether he or she is satisfied that it was inadvertent. In making such an order, the director may consider any information that he or she considers relevant.

Mistake in interest rate or APR

56(3)       When clause (1)(a) or (b) applies, the credit grantor may apply to the director for an order permitting it to recover or keep more than the amount determined under subsection (1). But the director must not make an order permitting the credit grantor to recover or keep an amount in excess of the amount that would be payable under the credit agreement if the rate stated to be the interest rate or the APR was the true APR.

Mistake in other statements

56(4)       When clause (1)(c), (d) or (e) applies, the credit grantor may apply to the director for an order permitting it to recover or keep more than the amount that the borrower has agreed to pay under the credit agreement. But if the omission or misstatement makes it uncertain how much the borrower must pay, the director must not make an order permitting the credit grantor to recover or keep more than the lowest amount that the document can reasonably be construed to require.

Grounds for order under subsection (3) or (4)

56(5)       The director may grant an order under subsection (3) or (4) on such terms as he or she considers just and equitable, if he or she is satisfied that the omission or misstatement was inadvertent.

Appeal of director's order

56(6)       A person affected by an order of the director under subsection (2), (3) or (4) may appeal the order to the court.

Court's power on appeal

56(7)       Upon hearing an appeal, the court may

(a) confirm or vary the order appealed from;

(b) quash the order appealed from, and, if it sees fit, substitute its own order; or

(c) refer the matter back to the director for further consideration in accordance with the determination of the court respecting the issues on appeal.

The court may also make any order respecting costs that it sees fit.

S.M. 2005, c. 16, s. 6.

DIVISION 7

TRANSITIONAL APPLICATION OF PART II

Transitional application of Part II

57(1)       Unless an order under subsection (2) provides otherwise, this Part applies to

(a) credit agreements for fixed credit, and leases, that are entered into on or after the day that this Part comes into force;

(b) credit agreements for fixed credit, and leases, that are entered into before the day that this Part comes into force, but renewed, extended or amended on or after that date; and

(c) credit agreements for open credit, without regard to whether they are entered into before, on or after the day that this Part comes into force.

Orders re application

57(2)       The Lieutenant Governor in Council may make an order respecting the application of this Part to any credit agreements and leases entered into before the day that this Part comes into force.

S.M. 2005, c. 16, s. 6.

PARTS III, IV and V (formerly sections 31 to 57) repealed.

S.M. 2005, c. 16, s. 6.

PART VI

STATUTORY WARRANTIES ON RETAIL SALES

Warranties on sale

58(1)       Notwithstanding any agreement to the contrary, the following conditions or warranties on the part of the seller are implied in every retail sale of goods and in every retail hire-purchase of goods:

(a) In the case of an immediate sale, a condition that he has the right to sell the goods, or, in the case of a credit sale, a condition that he has the right to agree to sell or to let on hire the goods, and will have the right to sell them at the time when the property is to pass to the buyer.

(b) In the case of an immediate sale, a warranty that the buyer shall have and enjoy quiet possession of the goods, or, in the case of a credit sale, a warranty that the buyer, so long as he fulfils his obligations under the credit sale agreement, shall have and enjoy quiet possession of the goods.

(c) A warranty that the goods are free from any charge or encumbrance in favour of any third party except only for any that the buyer has specifically agreed in writing to accept.

(d) A condition that the goods are new and unused unless otherwise described; but in the case of a motor vehicle a description showing that it is more than one year old is sufficient to describe it as used.

(e) A condition that the goods are of merchantable quality, except for such defects as are described.

(f) A condition that the goods correspond with the description under which they are sold.

(g) Where the goods are sold by sample, a condition that the bulk shall correspond with the sample and that the goods are free from any defect that renders them unmerchantable, and that would not be apparent on reasonable examination of the sample, and a condition that the buyer shall have a reasonable opportunity of comparing the bulk with the sample.

(h) Where the buyer expressly or by implication makes known to the seller the particular purpose for which the goods are required, so as to show that the buyer relies on the seller's skill or judgment, and the goods are of a description which it is in the course of the seller's business to supply, whether he is the manufacturer or not, a condition that the goods are reasonably fit for the purpose; but in the case of a contract for the sale of a specified article under its patent or other trade name, there is no implied condition as to its fitness for any particular purpose.

Statement of conditions

58(2)       For the purposes of clause (1)(e), it is not necessary to specify every defect separately, if the general condition or quality of the goods is stated with reasonable accuracy.

Statements relating to goods on credit sales

58(3)       Any statement

(a) that the goods are not new and unused; or

(b) of the age of a motor vehicle; or

(c) of defects in the goods; or

(d) of the general condition or quality of the goods;

shall be a part of the description of the goods for the purposes of sections 25, 34.3 and 34.5; and, where one or more of them applies, none of those statements has any effect unless it is included in the required description of the goods in the agreement or writing; but the statement shall be deemed to be included in the agreement or writing if it is contained in a document that

(e) is clearly identified as an appendix or schedule to the agreement or writing;

(f) is signed by the buyer and the seller;

(g) is attached to and forms a part of the agreement; and

(h) is delivered to the buyer with a copy of the agreement before delivery of the goods.

Statements relating to goods in cash sales

58(4)       Where sections 25, 34.3 and 34.5 do not apply, a statement of a kind referred to in subsection (3) has no effect unless it is made in writing and

(a) is contained in a notice that is readily visible to the buyer at or before the time of the sale and is so displayed as to make it clear that it refers to the goods; or

(b) is contained in a document that is delivered to the buyer before he accepts the goods.

Merchantable quality

58(5)       Where the goods are described as used in the manner required by this section, there shall be taken into account, in deciding whether they are of merchantable quality,

(a) the fact that they are used; and

(b) the age of the goods as specified in their description, or, if no age is specified, the age of the goods as understood by the buyer at the time of the sale.

Condition as to services

58(6)       Unless otherwise expressly agreed in writing signed by the buyer, there shall be implied in every retail sale of services a condition, on the part of the seller, that the services sold shall be provided in a satisfactory manner.

Effect on other conditions

58(7)       Nothing in this section excludes or affects any other condition or warranty relating to the goods or services, whether expressed or implied, as between the buyer and the seller or any person claiming through the seller who would, apart from this Act, be held to be bound thereby.

Express warranty

58(8)       Every oral or written statement made by a seller, or by a person on behalf of a seller regarding the quality, condition, quantity, performance or efficacy of goods or services that is

(a) contained in an advertisement; or

(b) made to a buyer;

shall be deemed to be an express warranty respecting those goods or services.

Seller to provide record

58(9)       Where a seller is required under this section to correct any defect or failure in any goods sold or services supplied by him, he shall, on each occasion give at the time of the correction, to the buyer a written record of all items and services that are used to correct the defect or failure at the time of the correction.

Mediation of warranty disputes

58(10)      In any transaction to which this Act refers where there is a dispute between a buyer and seller or a lender and borrower as to any condition or warranty, either or both parties may refer the dispute to the director who shall endeavour by mediation to settle the dispute.

S.M. 2005, c. 16, s. 7 and 8, as amended by S.M. 2008, c. 42, s. 11.

Personal liability of seller

58.1        In every retail sale or retail hire purchase of goods or services, the seller is personally liable to the buyer for all duties, liabilities, obligations and warranties applicable to the sale or hire purchase by this Act or by contract and the seller shall bear all expenses incidental to having the goods serviced under any warranty whether given by the manufacturer, seller or a third party.

R.S.M. 1987 Supp., c. 9, s. 1.

Warranty contract liability

58.2(1)     Notwithstanding any provision in a contract to service or repair goods including an extended warranty contract, and subject to subsection (2), the seller of the contract is liable to the buyer for the performance of all obligations under the contract to service or repair the goods, whether or not the seller is a party to the contract and whether or not the seller received a fee, commission or other remuneration for selling the contract.

Sales person not liable

58.2(2)     Subsection (1) does not render an employee or sales person of a seller personally liable for the performance of all or any of the obligations under a contract to which that subsection applies, notwithstanding that the actual sale of the contract is effected or arranged by the employee or sales person.

R.S.M. 1987 Supp., c. 9, s. 1; S.M. 1989-90, c. 53, s. 11.

PART VII

DIRECT SELLERS

Application of Part

59(1)       Subject to section 60 and to regulations made under clause 97(1)(d), this Part applies to all retail sales or retail hire purchases of goods or services or both entered into by the buyer elsewhere than at the vendor's usual place of business and which result from any offer, solicitation, proposal, or approach made, by or on behalf of the vendor

(a) without any prior request by the buyer; or

(b) in response to a request made by the buyer if the request was itself solicited by or on behalf of the vendor.

Certain types of sales subject to Part

59(2)       Without restricting the generality of subsection (1), this Part applies to all sales which are made in or from an agricultural fair, artistic or similar type of exhibition, a trade fair, motor vehicle, shopping mall, parking lot, dwelling, display room, office, hotel, motel or other temporary or short term establishment.

Place of conclusion of sale

59(3)       Although a retail sale is concluded in a vendor's usual place of business, if the buyer receives any personal communication from the vendor or a direct seller representing the vendor elsewhere than at the vendor's usual place of business prior to conclusion of the sale, the sale shall nevertheless be subject to this Part.

Address for service

59(4)       For the purposes of this Part

(a) a listing of the name of a vendor in a telephone, professional or trade directory shall not be deemed to be a solicitation; and

(b) the vendor's usual place of business shall be the address for service required to be given by the vendor under subsection 78(8) and any other address from which the vendor usually conducts his business if the director is satisfied that the use of the other addresses is not for the purpose of avoiding the requirements of this Part or Part X of this Act.

S.M. 2010, c. 31, s. 2; S.M. 2013, c. 54, s. 19.

Where Part not to apply

60(1)       This Part does not apply to

(a) sales or hire-purchases of vehicles or trailers within the meaning of The Highway Traffic Act or of farm machinery and equipment to which The Farm Machinery and Equipment Act applies; or

(b) sales of water, propane gas, or fuel petroleum products; or

(c) sales of lumber or coal where the vendor has a place of business in the municipality in which the sale takes place; or

(d) sales of feed grain, feed supplement, fertilizer, or weed spray where the vendor has a place of business in the municipality in which the sale takes place; or

(e) sales of farm produce in Manitoba by a farmer from his own farm; or

(f) sales of services relating to

(i) the raising and care of livestock; or

(ii) the planting, raising or harvesting of crops; or

(iii) any service of a domestic nature, including gardening; or

(g) any sale in which the price is expressly solicited as a contribution to a charitable, philanthropic, or similar cause and not as being a fair price for the goods or services offered; or

(h) sales of goods or services made to a buyer who is engaged in the retail sale of goods or services or both, if the goods or services or both are intended for exclusive use by the buyer in his regular place of business but not for resale unless the buyer is a farmer and The Farm Machinery and Equipment Act does not apply to the sale; or

(i) sales in which the only goods supplied consist of food or food products in a perishable state at the time of delivery;

(j) sales of daily or weekly newspapers by persons who actually make deliveries of the newspapers at periods coincident with the frequency of issue; or

(k) an exemption granted pursuant to a regulation made under clause 97(1)(d).

Certain selling practices prohibited

60(2)       No vendor or direct seller shall give, offer to give or promise to give, directly or indirectly, any gift, premium, prize or other benefit of any kind whatsoever to a buyer of goods or services or both, or to any person on his behalf, on the condition that the buyer or person will provide the vendor with service or assistance of any kind in furthering any attempt by the vendor to make a sale to another buyer.

Prohibition against premiums, etc.

60(3)       No vendor or direct seller shall give or offer to give, directly or indirectly, any gift, premium, prize or other benefit of any kind whatsoever to a buyer or prospective buyer of goods or services, or both, unless

(a) its retail sale value is accurately disclosed to the buyer or prospective buyer and is not included in the price of the goods or services;

(b) it is not contingent upon the prospective buyer making a purchase; and

(c) it does not constitute in any way, any part of the goods or services, or both, that are sold.

S.M. 2010, c. 31, s. 2.

Requirements of written agreement

61(1)       If an agreement for a retail sale or retail hire-purchase to which this Part applies is in writing,

(a) it shall be signed by the vendor and the buyer and shall conform with the requirements prescribed by the minister; and

(b) the vendor shall provide a duplicate copy of the agreement to the buyer at the time the agreement is entered into.

Requirements re oral agreement

61(2)       If an agreement for a retail sale or retail hire purchase to which this Part applies is not in writing, the vendor shall provide to the buyer, at the time that the agreement is entered into, a written statement of cancellation rights that conforms with the requirements prescribed by the minister.

S.M. 1989-90, c. 53, s. 12; S.M. 1996, c. 49, s. 2.

Cancellation within 10 days

62(1)       A buyer may cancel a retail sale or retail hire-purchase to which this Part applies at any time within 10 days following the day on which the buyer receives a statement of cancellation rights that conforms with the requirements prescribed by the minister.

Other cancellation rights

62(2)       A buyer may cancel a retail sale or retail hire-purchase to which this Part applies within one year after entering into the agreement where

(a) the vendor or direct seller was not licensed as required by this Act at the time of entering into the agreement;

(b) the vendor or direct seller has, in respect of the agreement, failed to comply with any of the terms, conditions or restrictions applicable to the vendor's or direct seller's licence;

(c) the statement of cancellation rights given to the buyer does not meet the requirements prescribed by the minister;

(d) if the agreement is in writing, it does not meet the requirements prescribed by the minister; or

(e) the vendor fails to

(i) deliver the goods within 30 days after

(A) the delivery date specified in the agreement or such other delivery date as is agreed to in writing, or

(B) if the delivery date cannot be established under paragraph (A), the date of the agreement, or

(ii) begin to provide the services within 30 days after

(A) the start date specified in the agreement or such other start date as is agreed to in writing, or

(B) if the start date cannot be established under paragraph (A), the date of the agreement.

Accepting delivery after 30 days

62(3)       A buyer who accepts the delivery of any goods or provision of any services under an agreement after the 30-day period referred to in clause (2)(e) is not entitled to cancel the agreement pursuant to that clause.

Relief against cancellation

62(4)       Where in the opinion of a court it is inequitable that clause (2)(e) should apply, the court may make such order as it considers appropriate.

Cancellation rights in addition to other rights

62(5)       The cancellation rights under this section in respect of an agreement are in addition to, and do not affect, any other right or remedy the buyer has under or in respect of the agreement or at law in the province or territory in which the buyer resides.

Cancellation of sale on credit

62(6)       Where credit is extended or arranged by a vendor in connection with a retail sale or retail hire-purchase to which this Part applies, and the credit agreement is separate from the sale or hire-purchase agreement, a cancellation under this section of the sale or hire-purchase agreement has the effect of cancelling the credit agreement.

S.M. 1989-90, c. 53, s. 12 and 13; S.M. 1996, c. 49, s. 2.

Notice of cancellation

63(1)       A retail sale or retail hire-purchase agreement is cancelled under section 62 on the giving of a notice of cancellation in accordance with this section.

Method of giving notice

63(2)       A buyer may give a notice of cancellation to the vendor by registered mail, fax, personal delivery or any other method by which the buyer can provide evidence of the date of the cancellation.

Adequacy of wording

63(3)       A notice of cancellation is adequate if, however expressed, it indicates the intention of the buyer to cancel the agreement.

Effective date of cancellation

63(4)       A notice of cancellation that is given otherwise than by personal delivery is deemed to be given when sent.

Address for service

63(5)       A notice is deemed to be sent to the vendor if it is sent to the address for notice set out in the agreement or statement of cancellation rights.

S.M. 1996, c. 49, s. 2.

Effect of cancellation

64(1)       Where a buyer cancels a retail sale or retail hire-purchase agreement under section 62,

(a) subject to subsection 65(2), every liability or obligation of the buyer under the agreement is extinguished;

(b) the vendor shall, within 15 days after the cancellation,

(i) refund to the buyer all money paid for or on account of the purchase price, rent, cost of credit or any other thing pursuant to the agreement, whether paid to the vendor or to any other person, and

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

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

(B) the price or value of the goods specified in the agreement; and

(c) in the case of an agreement respecting goods, on receiving everything to be refunded, returned or paid to the buyer under clause (b), the buyer shall return the goods to the vendor.

Negotiation of new agreement

64(2)       Upon receiving notice of cancellation of an agreement, the vendor shall fulfil his obligations under subsection (1) before attempting to renegotiate the agreement or to negotiate another agreement with the buyer; and any agreement for the sale of the same or substitute goods or services subsequently made between the vendor and the buyer is a new agreement that is subject to all of the provisions of this Part notwithstanding where the sale is completed.

S.M. 1996, c. 49, s. 3; S.M. 2005, c. 16, s. 9.

Rights of cancellation

65(1)       Except as provided in subsection 62(3), the right of a buyer to cancel an agreement under this Part is not affected by

(a) the delivery of the goods to him; or

(b) the use of the goods by him; or

(c) the partial consumption of the goods by him; or

(d) the accidental destruction of or damage to the goods; or

(e) the partial performance by the vendor of any services;

but the right of a buyer or hirer to cancel an agreement under this Part is extinguished by

(f) deliberate destruction of, or damage to, the goods by the buyer or any member of his household; or

(g) the actual consumption by the buyer of all goods comprised in the agreement and the complete performance by the vendor of all services comprised therein.

Where goods not intact

65(2)       Where goods have been used, or partially consumed or accidentally destroyed or damaged by a buyer, or some services have been performed by the vendor,

(a) the vendor may recover from the buyer reasonable compensation therefor;

(b) the vendor's right to recover compensation does not arise until the vendor has repaid or returned to the buyer all moneys and goods to which he is entitled; and

(c) the vendor may not maintain any action for compensation until the right thereto has arisen;

and a vendor shall not, under this subsection, recover payment from the buyer more quickly than he would have been entitled to under the agreement, and any judgment in favour of the vendor under this subsection may be made payable by instalments.

Buyer's lien on cancellation

65(3)       The buyer has a lien on all goods delivered to him for all amounts payable to him by the vendor.

S.M. 1996, c. 49, s. 4.

PART VIII

66 to 69    [Repealed]

S.M. 2005, c. 16, s. 10.

PART IX

CONSUMER PROTECTION OFFICE

Consumer Protection Office

70          The Consumers' Bureau is continued as the Consumer Protection Office.

S.M. 2011, c. 35, s. 8.

Administration of office

71          The office is under the control and direction of the minister.

S.M. 2011, c. 35, s. 8.

Duties of director

72          The director or any person acting under the authority of the director is responsible for

(a) the granting, suspending, and revocation of licences in respect of persons required to be licensed under this Act;

(a.1) the carrying out of inspections, examinations, audits or tests (with or without a complaint) to determine compliance with this Act, the terms and conditions of a licence or an order, and the taking of such action as the director considers appropriate in the circumstances;

(a.2) the receiving, handling and mediation of complaints;

(b) the investigation of breaches of this Act, and the taking of such action thereon as may appear appropriate, including the prosecution of offenders;

(c) [repealed] S.M. 2013, c. 45, s. 2;

(d) the dissemination of information of consumer interest in the widest and most effective manner; and

(e) generally, the administration and enforcement of this Act.

S.M. 2013, c. 45, c. 2.

Designation of consumer services officers

72.1(1)     The minister may designate any persons, or the members of any class of persons, as consumer services officers for the purposes of this Act.

Authority of officer

72.1(2)     A consumer services officer is a peace officer and is entitled to the protection provided by law to peace officers.

S.M. 2005, c. 16, s. 11.

73(1) and (2)  [Repealed] S.M. 2013, c. 45, s. 3.

Retention of records

73(3)       Every credit grantor to which this Act applies shall keep and maintain in the office where the account is maintained in Manitoba for a period of three years from the date the obligation is paid out a complete record and account of each transaction to which this Act applies.

Information confidential

73(4)       Except for the purposes of a prosecution under this Act, or in any court proceedings, or for the purpose of the administration or enforcement of this Act, neither the director nor a consumer services officer shall

(a) knowingly communicate, or allow to be communicated, to any person any information obtained by or on behalf of the director or an officer as a result of a complaint or as part of an inspection under this Act; or

(b) knowingly allow any person to inspect, or to have access to, any copy of any book, record, document, file, correspondence, or other record obtained by, or on behalf of, the director or an officer as a result of a complaint or as part of an inspection under this Act.

Exception

73(5)       Subsection (4) does not prohibit

(a) the communication of information, including personal information, by the director to a department or agency of the government of Manitoba or another province or territory of Canada or the Government of Canada or a municipality in Canada, or to members of a police force of any of the foregoing;

(b) the communication by the director of any information, including personal information, with the consent of the person to whom that information relates;

(c) the release or publication by the director, with the consent of the owner of any book, record, document, file, correspondence, or other record, or a copy thereof; or

(d) the communication of information, including personal information, by the director when, in the director's opinion, it is in the public interest to do so.

73(6) and (7) [Repealed] S.M. 2013, c. 45, s. 3.

S.M. 1992, c. 26, s. 2; S.M. 2005, c. 16, s. 12; S.M. 2012, c. 18, s. 2; S.M. 2013, c. 45, s. 3.

Inquiry by director

74(1)       The minister may authorize the director in writing to conduct an inquiry for the purpose of any investigation under this Act, and thereupon the director has all the powers of a commissioner under Part V of The Manitoba Evidence Act, and Part V, except sections 85 and 86 applies to the inquiry.

74(2) to (4)[Repealed]

S.M. 2013, c. 45, s. 4.

PART X

LICENSING

Licensing of vendors

75(1)       No person shall make on his own behalf, or use others to make on his behalf, any offer, solicitation, proposal, or approach that is intended to result in a sale to which Part VII applies unless he is licensed as a vendor under this Act, and where goods or services, or both are intended for resale or rehire, directly or indirectly in a manner to which Part VII and this Part apply, the director may determine the person who is required to be licensed as a vendor under this Part.

Licensing of direct sellers

75(2)       No person shall, on behalf of a vendor, make any offer, solicitation, proposal, or approach that is intended to result in a sale to which Part VII applies unless the person is licensed as a direct seller for that vendor under this Act.

Use of unlicensed direct seller

75(3)       No vendor shall use a person as a direct seller unless that person is licensed under this Act as a direct seller for that vendor.

Licence in one name only

75(4)       A vendor licence shall be issued in one name only.

Alternative to direct seller licensing

75(5)       Notwithstanding subsections (2) and (3) where a vendor confirms that the value of the average retail sale of goods by direct selling is less than $50., the vendor and the director may agree upon terms and conditions whereby an alternative to the licensing requirements may be arranged if

(a) the terms and conditions agreed upon are imposed on the vendor licence; and

(b) none of the rights of a buyer under this Act or any other statute of Manitoba or Canada are abrogated, limited or modified.

R.S.M. 1987 Supp., c. 9, s. 2 and 3; S.M. 1996, c. 49, s. 5.

Licensing of collection agencies

76(1)       No person shall carry on business as a collection agent unless he is licensed as a collection agent under this Act.

Employees of collection agents

76(2)       A person who is employed by a licensed collection agent as a collector does not require a licence to transact business on behalf of the employer but is subject to the registration requirements of section 105.

S.M. 1989-90, c. 53, s. 14.

Granting and renewal of licences

77(1)       Subject to sections 78 and 79, the director shall grant any licence required by this Part to any person who makes application therefor in the prescribed form and pays the prescribed fee; and, shall renew each licence so granted annually on receipt of a renewal application in the prescribed form and of the prescribed renewal fee.

Annual licences

77(2)       Subject to subsection 78(2), every licence shall be issued in the first instance for one year only, and shall be renewed annually; and if a licence is not renewed at the proper time, it expires and ceases to be valid.

Refusal to grant licence

78(1)       The director may refuse to grant a licence as a vendor, direct seller, or collection agent

(a) to any person

(i) who has been convicted of any offence against the Criminal Code (Canada), or

(ii) who has been convicted of an offence against this Act, or

(iii) who has been convicted of any other offence in Canada, that in the opinion of the director involves a dishonest act or intent on the part of the convicted person; or

(b) to any undischarged bankrupt; or

(c) [repealed] S.M. 2008, c. 42, s. 10;

(d) to any person whose licence under this Act, or whose registration under The Real Estate Brokers Act or The Mortgage Brokers Act, has been cancelled or is, at the time of application, under suspension; or

(e) to any corporation, one of the directors or managers of which could be refused a licence under clause (a), (b), (c) or (d); or

(f) to any person who has made a material misstatement in his application for a licence; or

(g) to any person under circumstances where the director is of the opinion that it would be injurious to the public interest to grant a licence; or

(h) to any person who has not complied with the requirements of any applicable federal, provincial or municipal statute, regulation or by-law.

Direct sellers' licences

78(2)       Licences as direct sellers shall be granted only to individuals and shall cease to be valid on the same date as that on which the licence of the vendor named in the direct seller's licence expires or ceases to be valid.

Conditions of licences

78(3)       The director, when granting or renewing a licence or by written notice to the licensee at any other time, may impose on the licence of a vendor, direct seller or collection agent, such conditions and restrictions as he considers to be reasonably necessary and without limiting the generality of the foregoing the director may

(a) impose on a vendor or collection agent to whom a licence is issued, conditions respecting the manner in which and terms under which the vendor or collection agent may recruit direct sellers or employees; and

(b) impose on a vendor, direct seller or collection agent to whom a licence is issued conditions respecting sales practices, promotional schemes or collection practices.

Special condition re officers of licensee

78(4)       In granting or renewing a licence to a corporation, the director may make it a condition thereof that an individual named in the licence shall continue to hold the office or position stated in the licence; and any licence granted subject to the condition expires one month after the condition ceases to be fulfilled, and a licence that has so expired shall not be renewed, but an application for a new licence to replace an expired licence may be made.

Partnerships licensed

78(5)       Persons who are carrying on business in partnership may join in one application for a licence as a vendor or collection agent, and a single licence may be issued to all of them; but the licence shall show both the partnership name and the names of all the partners; and, if any change whatever occurs in the composition of the partnership, the licence expires one month after the change occurs.

Alteration of partnership

78(6)       A licence that has expired under subsection (5) shall not be renewed, but an application for a new licence to replace the expired licence may be made; and where the only change is that one or more of the partners named in it have ceased to be partners, the new licence may be granted to the continuing partners for the balance of the year of the old licence, and in that event no fee is payable on the new licence.

Change of address

78(7)       Every vendor or collection agent licensed under this Act shall notify the director in writing of any change of the address of his principal place of business in Manitoba within 14 days of the change.

Service at address of licensee

78(8)       Every applicant for a licence as a vendor or collection agent shall state in the application an address for service in Manitoba; and any notice given pursuant to this Act or the regulations shall, for all purposes, be deemed to be sufficiently served if delivered to, or sent by registered mail to, the licensee at the address for service stated in his application for a licence, unless the licensee has notified the director in writing of a change of address for service, in which case, the notice shall be sufficiently served if delivered to, or sent by registered mail to, the licensee at the latest address for service of which the director has been notified.

S.M. 2008, c. 42, s. 10; S.M. 2009, c. 16, s. 23.

Refusal to renew licence

79(1)       The director may refuse to renew any licence if any event, or any change in the directorship or management of a corporation, has occurred since it was granted or last renewed, and that event or change would give grounds for refusing the grant of a licence.

Refusal on ground of circumstances

79(2)       The director shall refuse to renew a licence if he has become aware of any circumstances which would require him to refuse to grant a licence to the applicant.

Reasons for refusal of licence

80(1)       Where the director refuses to grant or to renew a licence, he shall state in writing his reasons for such refusal.

Reasons for imposing conditions and restrictions

80(2)       Where the director has imposed a condition or restriction on a licence, he shall, upon the written request of the licensee, state in writing his reasons for imposing the condition or restriction.

Licence not assignable

81(1)       A licence under this Act is not assignable.

Registration not assignable

81(1.1)     The registration of a person as a collector under this Act is not assignable.

Authority of vendor's licence

81(2)       The holder of a licence as a vendor may carry on a business to which Part VII applies in every respect, except that he is not authorized by his vendor licence to act as a direct seller for another vendor.

Authority of direct sellers license

81(3)       The holder of a licence as a direct seller shall only act as a direct seller for, or on behalf of, the vendor whose name is specified in the licence.

Director may limit number

81(3.1)     The director may limit the aggregate number of direct sellers who may be licensed to act for and on behalf of a vendor licensed in accordance with subsection 75(1).

Class of business transactions

81(4)       No vendor or direct seller shall, in the course of a business to which Part VII applies, sell or offer for sale, or solicit orders for the future delivery of, goods or services of any sort or class other than those specified in his licence.

Vendors to be principal of direct sellers

81(5)       Every application for a licence as a direct seller shall be accompanied by a notice given by a licensed vendor, stating that the applicant, if granted a licence, is authorized to act as a direct seller representing that vendor.

Principal to be named in licence

81(6)       A licence issued to a direct seller shall specify as the principal of the licensee the vendor who has given the notice accompanying the application for that licence pursuant to subsection (5).

Direct seller acting for vendor

81(7)       A direct seller who is the holder of a subsisting licence shall be deemed to be authorized by the vendor specified in the licence to act for on behalf of that vendor.

Cancellation of direct seller's licence

81(8)       Where a direct seller ceases to represent a vendor, that vendor shall forthwith give notice in writing to the director that the salesman has ceased to represent him; and the receipt of the notice by the director operates as a cancellation of the licence of the direct seller.

R.S.M. 1987 Supp., c. 9, s. 4; S.M. 1989-90, c. 53, s. 15.

Licence required

82          No person shall carry on any business or occupation for which a licence under this Act is required without having a valid subsisting licence to do so.

83          [Repealed]

S.M. 2013, c. 45, s. 5.

Notice of cancellation

84(1)       Where any person who is licensed under this Act

(a) is convicted

(i) of any offence against the Criminal Code (Canada), or

(ii) of any offence against this Act, or

(iii) of any offence in Canada, that in the opinion of the director involves a dishonest act or intent on the part of the convicted person; or

(b) becomes a bankrupt; or

(c) being registered under The Real Estate Brokers Act or The Mortgage Brokers Act, suffers a cancellation of his registration thereunder; or

(d) [repealed] S.M. 2013, c. 45, s. 5;

(e) fails to comply with any of the terms, conditions or restrictions to which his licence is subject; or

(f) has made a material misstatement or otherwise failed to disclose full information as required in his application for a licence;

the director may serve upon him, by registered mail, a notice of cancellation of his licence.

Contents of notice of cancellation

84(2)       A notice of cancellation of a licence shall state

(a) the reasons for cancellation; and

(b) that the licence will be cancelled 14 days after the mailing of the notice unless, within that time, the person licensed appeals to the court in accordance with section 87 and serves on the director a notice of appeal.

Cancellation of licence

84(3)       Unless an appeal is taken under section 87, and notice thereof given to the director within the 14 days, the director shall cancel the licence 14 days after the mailing of the notice under subsection (2) without any further notice.

Effect of cancellation of vendor's licence

84(4)       Where the licence of a vendor is suspended or cancelled, the licence of all direct sellers of the vendor shall likewise be suspended or cancelled, as the case may be.

S.M. 2009, c. 16, s. 23; S.M. 2010, c. 33, s. 6; S.M. 2013, c. 45, s. 5.

Appeal from decision of director

85(1)       An applicant, licensee or person in respect of whom the decision was made, may appeal, by originating notice of motion, to the court from the decision of the director in the following cases and on the following grounds:

(a) Where the director has refused to grant or to renew a licence, upon the ground that the reasons for the refusal as stated by the director either

(i) allege some material matter of fact which is not correct; or

(ii) do not, in law, constitute a reason for refusing to grant or renew a licence under this Part.

(b) Where the director has imposed a condition or restriction on a licence, upon the ground that the reasons for imposing it, as stated by the director, are insufficient to support it.

(c) Where the director has refused to accept a bond of less than $5,000. under subsection 89(2), upon the ground that the proof furnished to the director did establish that a bond of a lesser amount would be sufficient.

(d) Where the applicant contends that the amount of the bond required by the director under subsection 90(1) is excessive, upon the ground that it is for a larger amount than is usually required, and that the reasons stated by the director do not justify the requiring of so large a bond.

(e) Where the director refuses to give any consent required under section 105 upon the grounds that the consent was unreasonably withheld.

Director to comply with court order

85(2)       Where the court allows the appeal, the director shall grant or renew the licence, cancel or modify the condition or restriction, or reduce the amount of the required bond, as the case may be; but until the appeal is decided the decision of the director that is under appeal is valid and effective, and the applicant must comply with it while the appeal is pending.

86          [Repealed]

S.M. 2013, c. 45, s. 5.

Appeal of cancellation

87(1)       A person on whom a notice of cancellation under section 84 is served may appeal therefrom, by originating notice of motion, to the court on the ground that

(a) any material fact alleged in reasons for the cancellation is not correct; or

(b) the reasons set forth in the notice are not sufficient in law to justify cancellation of the licence; or

(c) if the notice was served pursuant to clause 84(1)(d), that the further breach alleged was due to inadvertence.

Time for filing appeal

87(2)       The notice of motion must be filed and served on the director within 14 days of the mailing of the notice under section 84.

Where appeal allowed

87(3)       Where the court allows the appeal, the notice of cancellation is of no effect.

Dismissal of appeal

87(4)       Where the court dismisses the appeal, the director shall cancel the licence.

Determination of fact by court

88(1)       Where an appeal is taken under section 85 or 87, the court shall determine any fact in dispute in such manner as it considers appropriate.

Director as respondent

88(2)       Every notice of motion appealing from a decision or action of the director shall be served on the director, and he shall be named as the respondent thereto.

Court may substitute its opinion

88(3)       Where the director has refused to grant or to renew, or has cancelled, a licence on the ground that the applicant or licensee has been convicted of an offence that, in the opinion of the director, involves a dishonest act or intent on the part of the offender, that opinion is, for the purposes of this Part, a question of law, and the court may substitute its own opinion for that of the director.

Bond for collection agent

89(1)       Subject to subsection (2), an applicant for the granting or renewal of a licence as a collection agent, shall file with the director, a bond in a form acceptable to the director and in an amount of not less than $5,000., but the director may increase the amount of bond as may appear necessary in view of the agent's volume of business.

Smaller bond

89(2)       In the case of an application for renewal of a licence, the director may accept a bond of less than $5,000. upon being furnished with proof, acceptable to him, that a bond of the lesser amount would be sufficient, in view of the volume of the applicant's business in the preceding 12 months.

Change in officers of collection agent

89(3)       Where a collection agent licensed under this Act is a corporation and a change occurs in the directors or officers thereof, the agent shall forthwith file with the director such documentary evidence as the director may require establishing, to the satisfaction of the director, that the surety that bonded the agent has been notified of the change.

Cancellation of bond

89(4)       Every bond required by this section shall provide that it cannot be cancelled without written notice to the director.

Suspension of licence

89(5)       When a bond is cancelled, whether by the agent or by the surety, the agent's licence is automatically suspended, and remains suspended until the agent files with the director a new bond complying with the requirements of this section.

Where bond cancelled

89(6)       Where the director has received from a surety notice of intention to cancel a bond of an agent who applies to renew a licence, the director may refuse to renew the licence until a new bond has been filed in accordance with the requirements of this section.

Bond for vendors

90(1)       The applicant for the granting or renewal of a vendor's licence shall file with the director, as part of the application, a bond in such form as may be prescribed by regulations, and in such amount as the director may require and when a bond is cancelled, whether by the surety or the vendor, or expires, the vendor's licence is automatically suspended until the vendor files with the director a new bond that complies with this section.

Reasons for amount of bond

90(2)       Where the applicant gives the director written notice that he considers the amount of the bond required by the director under subsection (1) to be excessive, the director shall state in writing his reasons for requiring a bond of the amount in question.

Rights of government under bond

90(3)       Notwithstanding that the government has not suffered any loss or damages, every bond delivered to the director under subsection (1) shall be construed as being a penal bond; and, where the bond is forfeited pursuant to subsection (4), the amount due and owing as a debt to the government by the person bound thereby shall be determined as if the government suffered such loss or damages as would entitle the government to be indemnified to the maximum amount of liability prescribed by the bond.

Forfeiture of bond

90(4)       Every bond delivered under subsection (1) shall be forfeited, upon demand of the director, where

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

(i) an offence under this Act or any regulation; or

(ii) an offence involving fraud or theft or conspiracy to commit an offence involving fraud or theft under the Criminal Code (Canada); or

(b) judgment in respect of a claim arising out of a sale to which Part VII applies, has been given against the person in respect of whose conduct the bond is conditioned or against any representative, agent, or salesman of that person; or

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

(d) a decision has been rendered by the director in writing stating in effect that after consideration and investigation of a complaint, he is satisfied that the person in respect of whose conduct the bond is conditioned or any representative, agent, or salesman of that person

(i) has violated any provision of this Act or has failed to comply with any of the terms, conditions or restrictions to which his licence is subject or is in breach of contract; or

(ii) has departed from Manitoba or being out of Manitoba remains out of Manitoba, or departs from his dwelling house or otherwise absents himself;

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

Sale of collateral to bond

90(5)       Where a bond secured by the deposit of collateral security with the director is forfeited under subsection (4), the director may sell the collateral security at the current market price.

Payment of moneys recovered under bond

90(6)       The minister may direct that any moneys recovered under a bond or realized from the sale of any collateral security be paid over

(a) to the Registrar or a deputy registrar of the court, in trust for such persons as may become judgment creditors of the person named in the bond, in respect of claims arising out of sales to which Part VII applies; or

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

in accordance with, and upon the conditions set forth in, the direction; or

(c) to such persons as may be deemed to be entitled thereto

(i) by reason of a sale to which Part VII applies, made by or on behalf of the person named in the bond, or

(ii) by reason of any offer, solicitation, proposal or approach made by or on behalf of the person named in the bond and intended to result in a sale to which Part VII applies.

Disposition of unexpended moneys

90(7)       Any moneys not expended pursuant to a direction of the minister under subsection (6) shall be refunded to the surety or obligor under the bond except where there are third party claims against those moneys, in which case, the moneys not expended shall be paid to the court.

S.M. 1989-90, c. 53, s. 16.

Appeal of decision of director

91(1)       A person who is aggrieved with a decision of the director under subsection 90(4) or (5) may, within 30 days after the date of the decision, appeal to the court which may, upon hearing the appeal, make such order as may seem fit having regard to all the circumstances.

Form of appeal

91(2)       The appeal shall be by notice of motion, and a copy thereof shall be served upon the director within 30 days after the date of the decision and not less than 10 days before the day on which the motion is returnable.

PART XI

GENERAL PROVISIONS

Protection from liability

92          No action or proceeding may be brought against the director, a consumer services officer or any other person acting under the authority of this Act for anything done or not done, or for any neglect,

(a) in the performance or intended performance of a duty under this Act or the regulations made under it; or

(b) in the exercise or intended exercise of a power under this Act or the regulations made under it;

unless the person was acting in bad faith.

S.M. 2005, c. 16, s. 13.

Advertising licence prohibited

93          No person licensed under this Act shall, directly or indirectly, hold himself out as being so licensed, or exhibit to the public any letter, receipt, or copy thereof received from the director, or in any way advertise the licence, save to produce the licence on request, or as may be required pursuant to a condition to which the licence is subject or by the regulations.

False information

93.1        No person shall knowingly provide false or misleading information or misrepresent any fact or circumstance to the director or a consumer services officer.

S.M. 2013, c. 45, s. 6.

94          Renumbered as section 136.1.

94.1        Renumbered as section 136.2.

95          Renumbered as section 136.3.

Agreements waiving benefits

96          Every agreement or bargain, oral or written, expressed or implied, that any provision of this Act or the regulations does not apply, or that a benefit or remedy under this Act or the regulations is not available, or that in any way limits or abrogates, or in effect limits, modifies, or abrogates, a benefit or remedy under this Act or the regulations, is void; and moneys paid under or by reason of the agreement or bargain are recoverable in the court.

Requesting or requiring consumers to waive or limit rights

96.1        No person shall request or require a consumer to waive or limit his or her rights under this Act unless the waiver or limitation is permitted under this Act.

S.M. 2012, c. 18, s. 3.

Regulations by L.G. in C.

97(1)       For the purpose of carrying out the provisions of this Act according to their intent, the Lieutenant Governor in Council may make regulations ancillary thereto and not inconsistent therewith; and every regulation made pursuant to, and in accordance with the authority granted by, this section has the force of law; and, without restricting the generality of the foregoing, the Lieutenant Governor in Council may make regulations

(a) prescribing the form and contents of applications for the granting or renewal of a licence or for registration as a collector;

(b) prescribing the form and contents of licences and bonds;

(c) prescribing the fees payable under this Act;

(d) exempting any class of buyer, seller, vendor, direct seller, collection agent, credit grantor or borrower or any category of transaction from the application of this Act or any provision thereof;

(e) prescribing standard forms of contract and notices required to be given under the Act;

(f) to (i) [repealed] S.M. 2005, c. 16, s. 16;

(j) prescribing services to which Part XV applies, in addition to the services set out in the definition of "services" in section 121;

(k) prescribing additional information that must be disclosed in an advertisement, a disclosure statement or a statement of account;

(l) specifying the form or manner in which information must be disclosed in a disclosure statement or advertisement;

(m) prescribing criteria for a regularly published interest rate to be considered an index rate;

(n) specifying the manner in which the APR is to be determined;

(o) for the purpose of clause 4(3)(f), exempting a credit agreement or lease, or a class of credit agreements or leases, from the application of Part II;

(p) for the purpose of section 6, designating any thing as value given or value received;

(q) for the purpose of subsection 12(3), specifying a manner in which a person may waive the notice period;

(r) for the purpose of subsection 12(4), specifying a charge that does not trigger the notice period;

(s) for the purpose of subsection 18(3), specifying the method of determining the portion of a non-interest finance charge to be refunded or credited upon the prepayment of the outstanding balance;

(t) for the purpose of subsection 24(2), establishing the manner in which the amount of a refund in relation to an optional service is to be determined;

(u) specifying what constitutes a reasonable amount to be charged under section 33.4, including, but not limited to, costs that may be included, as legal costs or otherwise, in a charge under that section;

(v) respecting advertisements for credit sales involving non-interest finance charges;

(w) for the purpose of section 35.8, specifying transactions, or classes of transactions, to which subsection 35.8(1) or (5) does not apply;

(x) respecting the making of orders by the director under section 56;

(y) governing early termination of leases, including limiting the amount payable by a lessee upon a voluntary or involuntary early termination of a lease;

(z) exempting leases or classes of leases from the application of Division 4 of Part II;

(aa) prescribing an advertising medium for the purpose of subsection 38(3);

(bb) prescribing the method of calculating a lessee's maximum residual obligation;

(cc) defining, or prescribing a method of determining, the realizable value of leased goods;

(dd) requiring information to be disclosed in respect of extra charges based on use of the leased goods;

(ee) respecting security given for a lease;

(ee.1) for the purpose of Part XXI (Negative Option Marketing),

(i) respecting what constitutes a material change in goods or services supplied to a consumer on a periodic basis,

(ii) respecting Internet negative option marketing;

(ff) defining any word or phrase used but not defined in this Act;

(gg) respecting any matter necessary and advisable to carry out effectively the intent and purpose of this Act;

(hh) respecting the manner in which an order under section 135.6 (compliance) or 135.12 (costs) may be given or served;

(ii) extending the application of section 135.12 (order re costs) to other persons;

(jj) requiring persons to make and maintain records for the purposes of this Act, and specifying the records to be made and maintained and the length of time for which and the location at which those records are to be retained;

(kk) prescribing anything referred to in this Act as being prescribed.

Regulations about Internet negative option marketing

97(2)       Without limiting clause (1)(ee.1), a regulation made under that clause may do one or more of the following:

(a) designate another jurisdiction as a reciprocating jurisdiction if, in the opinion of the Lieutenant Governor in Council, it has similar law for the regulation of Internet negative option marketing;

(b) authorize the minister, on behalf of the government, to enter into an agreement with the government of a reciprocating jurisdiction respecting the application, administration or enforcement of Part XXI or the law of that jurisdiction in respect of Internet negative option marketing;

(c) in accordance with any agreement made under clause (b), specify which law applies or does not apply when both Part XXI and the law of the reciprocating jurisdiction purport to apply to Internet negative option marketing;

(d) extend, modify or limit the application of any provision of Part XXI in relation to Internet negative option marketing.

S.M. 1989-90, c. 53, s. 18, 19 and 20; S.M. 1996, c. 49, s. 6; S.M. 2005, c. 16, s. 16; S.M. 2010, c. 31, s. 4; S.M. 2013, c. 45, s. 10.

Regulations for Part VII

97.1        The minister may make regulations respecting

(a) the form and content of written agreements for retail sales and retail hire-purchases to which Part VII applies;

(b) the form and content of the statement of cancellation rights referred to in Part VII;

(c) any other matter considered necessary or advisable to carry out effectively the intent and purposes of Part VII.

S.M. 1996, c. 49, s. 7; S.M. 2000, c. 32, s. 33.

Regulations for Part XVI

97.2        The minister may make regulations

(a) prescribing information that a seller must provide to a buyer before entering into a retail sale or retail hire-purchase agreement to which Part XVI applies;

(b) respecting requests under Part XVI for the reversal or cancellation of credit card charges and charges for associated interest and other costs;

(b.1) prescribing goods or services for the purpose of subsection 130(1);

(c) respecting any matter that the minister considers necessary or advisable to carry out effectively the intent and purposes of Part XVI.

S.M. 2000, c. 32, s. 34; S.M. 2001, c. 10, s. 2.

Regulations — administrative penalties

97.3        The Lieutenant Governor in Council may make regulations respecting administrative penalties for contraventions of this Act or the regulations, including regulations

(a) prescribing provisions of this Act or the regulations for which a notice of administrative penalty may be issued;

(b) prescribing the form and content of the notice of administrative penalty and the notice of appeal;

(c) respecting the determination of amounts of administrative penalties, which may vary according to the nature or frequency of the contravention;

(d) respecting any other matter necessary for the administration of the system of administrative penalties provided for under this Act.

S.M. 2005, c. 16, s. 17; S.M. 2013, c. 45, s. 11.

Scope and application of regulations

97.4        A regulation made under section 97, 97.1, 97.2 or 97.3 may be general or particular in its application and may establish one or more classes and may apply differently to different classes.

S.M. 2013, c. 45, s. 12.

PART XII

COLLECTION PRACTICES

Prohibitions

98          No person, whether on his own behalf or on behalf of another, directly, or through others, shall with respect to any loan of money to which this Act applies, or to any hire-purchase or sale of goods or services, or both

(a) collect or attempt to collect from a debtor a greater amount than the sum of the amount actually owing by the debtor to the credit grantor and the amount of fees allowed by any statute or regulation made thereunder; or

(b) notwithstanding any agreement to the contrary between the credit grantor and a debtor, collect or attempt to collect from the debtor any fee or commission payable by the credit grantor to a collection agent under any agreement or understanding between the credit grantor and the collection agent; or

(c) send any telegram or make any telephone call to a debtor for the purpose of demanding payment or negotiating payment of a debt if the charges for the telegram or telephone call are payable by the addressee of the telegram or the person to whom the telephone call is made; or

(d) verbally or in writing, collect or attempt to collect money or effect or attempt to effect seizure of goods by stating an intention or threat to proceed with any action for which he does not have lawful authority; or

(e) use, without lawful authority, any summons, notice, demand or other document expressed in language of the general style of any form used in any court in the province, or printed or written in such a manner so as to have the general appearance or format of any form used in any court in the province; or

(f) make telephone calls or personal calls of such nature or with such frequency as to constitute harassment of the debtor, his spouse or common-law partner or his family; or

(g) refer or assign an account for collection or seizure of goods to a collection agent without first cancelling in writing any previous referral or assignment to any other collection agent; but one collection agent may act for or on behalf of another collection agent or a barrister or solicitor; or

(h) except with the leave of the court, remove any goods claimed under seizure or distress unless the debtor, his spouse or common-law partner, his agent or an adult having possession and use of the goods with the consent of the debtor, is present at the time and is aware of the removal; or

(i) seize or attempt to seize, or levy distress against any goods other than those specifically charged or mortgaged, or to which lawful claim may be made under any statute or judgment; or

(j) make a telephone or personal call or attempt to make a telephone or personal call to or on a debtor to demand payment, or negotiate for payment, or seize or levy distress against goods

(i) on a Sunday, or

(ii) on a holiday, or

(iii) on any other day except between the hours of seven o'clock in the morning and nine o'clock in the evening; or

(k) make further demand for payment of an account or seize goods or levy distress if the debtor gives notice by registered mail to the credit grantor, his assignee or collection agent, of a claim for set-off or counter-claim under this Act or any other statute or regulation, or under any right of contract, until

(i) the credit grantor, his assignee or collection agent has submitted the matter to a court of competent jurisdiction for adjudication, or

(ii) the debtor and the credit grantor, his assigns or collection agent, have agreed in writing to the amount still owing by the debtor in respect of the account after deducting an amount agreed upon for the claim for set-off or counter-claim; or

(l) give, by implication, inference or statement, directly or indirectly, any false information to any person or agency that may be detrimental to a debtor or his spouse or common-law partner; or

(m) make any demand for payment, by telephone, by personal call, or by writing, for payment of an account without indicating the name of the credit grantor with whom the account was incurred, the balance owing on the account, and the identity and authority of the person making the demand; or

(n) make telephone calls or personal calls of such a nature or with such frequency as to constitute harassment of any person in an effort to determine the present whereabouts of a debtor, his spouse or common-law partner or his family; or

(o) collect from a debtor any amount greater than that provided by regulation for acting for the debtor in making arrangements or negotiating with credit grantors on behalf of the debtor or receiving money from the debtor, for distribution to his creditors.

S.M. 2002, c. 24, s. 13.

Further meaning of debtor

99          In this Part the term "debtor" includes any person

(a) from whom payment of an alleged debt is demanded; and

(b) from whom a person seizes or attempts to seize goods.

Leave to seize

100(1)      For the purposes of clause 98(h), a person may apply to the court for leave to remove goods claimed under seizure or distress in the absence of the debtor, his spouse or common-law partner, his agent or an adult having possession and use of the goods with the consent of the debtor and subsections 44(2), (3) and (4) apply, with the necessary changes, to the application.

Section 45 does not apply to seizure

100(2)      Where any goods are repossessed pursuant to leave of the court granted under subsection (1), section 45 does not apply to the repossession.

S.M. 2002, c. 24, s. 13; S.M. 2005, c. 16, s. 18.

Penalty for wrongful collection

101(1)      Where a collection agent, or a creditor, or any other person, charges a debtor with any amount that is not rightfully collectable from the debtor by reason of any provision of section 98, the debtor may

(a) if the amount has been paid by the debtor, recover from the creditor an amount equal to three times the amount of the charge as a debt due to the debtor; or

(b) if the amount has not been paid or partly paid, set-off an amount equal to three times the amount of the charges against the amount rightfully owing to the creditor and, if the amount of the set-off is greater than the amount rightfully owing, recover the excess from the creditor as a debt due to the debtor.

Action on wrongful possession

101(2)      Where a collection agent or a creditor, or any other person, seizes or levies a distress against goods contrary to section 98, the debtor, or any person claiming an interest in the goods through the debtor, may take possession of the goods and recover the cost of taking possession from the collection agent, the creditor, or the other person, as the case may be.

Restriction on use of name

102(1)      No collection agent shall conduct the business of collection agent under a name that differs from that under which he is licensed and each collection agent licence shall be issued in one name only.

Use of unlicensed collection agents

102(2)      No person shall use any person other than his own employee to act as a collection agent unless the person so used is a licensed collection agent.

Use of collection agent by another collection agent

102(3)      Where one collection agent uses another collection agent to collect a debt or seize goods, he shall immediately on referring the matter to the other collection agent, discontinue his attempt to collect or seize goods from the debtor and notify the credit grantor or his assignees and the debtor, of the name of the agent to which the matter has been referred.

Limitations on benefits from business

103(1)      No collection agent shall obtain any benefit, either directly or indirectly, from the conduct of his business as a collection agent other than the agreed schedule of fees payable by the credit grantor using his services and amounts not in excess of any fees prescribed under this or any other Act of the Legislature or regulations made thereunder, or any Act of Parliament or regulations made thereunder.

Collection of double fees prohibited

103(2)      Where pursuant to clause 98(o) a collection agent has collected from a debtor an amount for his services under that clause, he shall not collect a fee or any amount from the creditor of that debtor with respect to the debt or part thereof, so collected.

Use of forms

104         No collection agent shall use any form that, in the opinion of the director, is an avoidance or a breach of this Act.

Employees

105         Except with the consent of the director, no collection agent shall employ or use any person

(a) who has been convicted of an offence under the Criminal Code (Canada); or

(b) who has been convicted of an offence under this Act, or under any statute in force in any part of Canada that is similar in nature to this Act; or

(c) who within the previous ten years has been a bankrupt or has been an officer or director of a corporation or a member of a partnership that became bankrupt during the period of his involvement unless, in each case, the creditors in the bankruptcy have been paid in full; or

(d) who is not registered with the office in accordance with the regulations; or

(e) who is unable to satisfy the director as to his competence and knowledge of this Act and any other Act of Manitoba or Canada pertaining to collection of debts;

and, upon payment of the prescribed fee, the consent shall be granted in accordance with the regulations in the first instance for one year only, and shall be required annually thereafter.

S.M. 1989-90, c. 53, s. 21; S.M. 2011, c. 35, s. 8.

Registration of certain persons with the office

106         No person shall collect or attempt to collect moneys or seize or attempt to seize goods for or on behalf of a collection agent unless that person is registered with the office in accordance with section 105 to be employed by the collection agent named in the application to register as a collector as provided by the regulations.

S.M. 2011, c. 35, s. 8.

Restriction on use of name by collector

106.1       No collector shall, for or on behalf of a collection agent, collect or attempt to collect money, or seize or attempt to seize goods, using a name that differs from that under which the collector is registered under section 105.

S.M. 1989-90, c. 53, s. 22.

Proper records

107         Every collection agent shall keep proper records and books of account showing moneys received and moneys paid out, including a receipt book, a cash book, a ledger of client's accounts, a ledger of debtor's accounts, and a journal, or equivalent accounting records satisfactory to the director.

Trust account

108(1)      Every collection agent shall maintain in the province a trust account in a bank, trust company or credit union, and shall deposit all moneys received on behalf of a client in the trust account.

Withdrawals from trust account

108(2)      A collection agent shall not withdraw any moneys from the trust account except

(a) money paid to or on behalf of a client from funds that have been deposited in the trust account for the credit of the client;

(b) money required for payment to the collection agent of his charges pursuant to an agreement to collect debts or disbursements made on behalf of a client from money in the trust account held for the credit of the client; and

(c) money paid into, or credited to, the trust account by mistake.

Appointment of auditors

109(1)      Every collection agent shall appoint an auditor satisfactory to the director to audit his books and accounts.

Submission of audited statements

109(2)      Every collection agent shall cause to be prepared and shall submit to the director, within three months of the close of his fiscal year, a statement, certified by the auditor of the collection agent, showing

(a) the assets and liabilities of the collection agent; and

(b) the gross amount of moneys collected during the preceding fiscal year of the collection agent.

Accounting to client for collections

110(1)      Without notice or demand therefor, every collection agent shall account to the client for all moneys collected by him within 30 days after the end of the calendar month in which the moneys are collected and if the total of all amounts payable to any person after deduction of any agreed charges is $10. or more, he shall at the same time pay the amount to the person entitled to receive it.

Accounting for seized goods or chattels

110(2)      Without notice or demand therefor every collection agent shall provide

(a) within four days after the goods or chattels have been seized a written notification to the client and to the person from whom the goods were seized listing all goods or chattels seized by the collection agent; and

(b) within 30 days after the end of the calendar month in which the goods or chattels are seized, pay the client the amount obtained from the sale of any of the goods or chattels so seized and return all unsold goods or chattels to the person entitled to receive them.

Liability for care of seized goods or chattels

110(3)      While seized goods or chattels are in the custody of a collection agent the collection agent shall be liable for loss of, or injury to, goods or chattels caused by his failure to exercise the care and diligence in regard to them that a careful and vigilant owner of similar goods or chattels would exercise in the custody of them in similar circumstances.

Disclosure of actions

110(4)      On demand by a client, or by the director, a collection agent shall disclose within four days the actions taken and the results obtained in respect of any account referred to him for collection, but neither a client nor the director shall demand disclosure in respect of any account more frequently than once in any month.

Surrender of documents

110(5)      Within 30 days after demand by a client therefor, a collection agent shall surrender any documents or records supplied to him by the client in respect of any account referred to him by the client, and shall cease immediately to pursue his efforts to obtain payment from the debtor.

Application of subsection (5)

110(6)      The provisions of subsection (5) apply notwithstanding any agreement to the contrary entered into between a collection agent and a client.

Failure to locate creditor

111(1)      Where a collection agent has collected moneys on behalf of a creditor, and is unable to locate the person entitled to receive the moneys within six months after the moneys have been collected; he shall pay the moneys, less his agreed charges, to the minister with a statement thereof showing the full name and address last known to him of the person entitled to the moneys.

Disposal of moneys

111(2)      Where the minister receives moneys under subsection (1), he shall deposit the moneys with the court; and if no claim for the moneys arises within seven years of the date of deposit of the moneys with the minister, the moneys shall be paid into the Consolidated Fund and are thereupon forfeited to the Crown.

Application of the Part

111(3)      Notwithstanding any agreement to the contrary entered into before or after the coming into force of this Act, this Part applies to all collection practices or seizures which take place after this Act comes into force.

112          [Repealed]

S.M. 2013, c. 45, s. 13.

PART XIII

113 to 117  [Repealed]

S.M. 2000, c. 32, s. 35; S.M. 2005, c. 16, s. 19.

PART XIV

118 to 120  [Repealed]

S.M. 1996, c. 64, s. 5 and 6.

PART XV

PREPAID SERVICES

Definitions

121         In this Part,

"buyer" means a person who

(a) enters into a contract with a seller, or

(b) who is discussing a contract with a seller with a view to entering into the contract; (« acheteur »)

"contract" means a contract for any services to which this Part applies; (« contrat »)

"fee" means all amounts payable by a buyer for services, and includes payments for initiation or membership or both, and all costs associated with the purchase of services from a seller; (« frais »)

"seller" means a person who is in the business of selling, or providing or offering to provide, services; (« vendeur »)

"services" means services of any kind whatsoever, and facilities of any kind whatsoever whether or not provided in conjunction with services, relating to

(a) health, fitness, exercise, body building or conditioning, modelling, talent development, dieting, martial arts, sports or dance activities or other activities of a similar nature, or

(b) dating or introduction clubs, or

(c) such other activities, clubs or matters as may be prescribed by regulation,

and may include instructional services. (« services »)

S.M. 1989-90, c. 53, s. 23.

Application

122(1)      This Part applies to services for which payment in advance is required.

Exception

122(2)      This Part does not apply to services that are provided

(a) by a non-profit organization; or

(b) by a corporation without share capital; or

(c) by a cooperative within the meaning of The Cooperatives Act; or

(d) by a seller whose services require registration under The Private Vocational Institutions Act; or

(e) The University of Manitoba, The University of Winnipeg, Brandon University, Université de Saint-Boniface, University College of the North or the corporation established by The Mennonite College Federation Act; or

(f) by a school district or school division established under The Public Schools Act; or

(f.1) the Manitoba Institute of Trades and Technology continued under The Manitoba Institute of Trades and Technology Act; or

(g) by golf, curling or racquet clubs or other clubs of a similar nature; or

(h) as incidental to the main business of the operator; or

(i) by a class of sellers specified in the regulations.

Existing contracts

122(3)      This Part does not apply to a contract in force at the time this Part comes into force.

S.M. 1989-90, c. 53, s. 23; S.M. 1998, c. 51, s. 3; S.M. 2002, c. 23, s. 24; S.M. 2005, c. 16, s. 20; S.M. 2011, c. 16, s. 38; S.M. 2014, c. 24, s. 25.

Written contract

123(1)      No seller shall receive advance payment for services from a buyer with whom the seller does not have a written contract setting out

(a) the names and addresses of the seller and buyer;

(b) a description of the services to be provided under the contract;

(c) the total fee for the services to be provided under the contract;

(d) the date that the services will be made available, if the services or any part of the services are not available at the time of entering into the contract;

(e) a statement that complies with subsection 123(3); and

(f) a schedule of payments that complies with section 125.

Cancellation within 7 days

123(2)      Any contract to which this Part applies may be cancelled by notice in writing within 7 days after the day on which the buyer enters into the contract or the services are available, whichever is the later, by serving the notice by registered mail or personal delivery on the seller at the seller's usual place of business; and the notice is good and effective if, however expressed, it indicates the intention of the buyer to withdraw from the transaction.

Statement required in contract

123(3)      Every contract to which this Part applies shall be accompanied by a written notice which shall have printed or typed at the top of the first page, in type not less than 10 point in size, the following words or such other words as may in the view of the director provide the same information to the buyer:

"You may cancel this contract by notice in writing within 7 days after you sign it. If you do not cancel this contract within the 7 days, you may not be able to cancel it afterwards. You may send your notice by registered mail to (name of seller and address of seller's usual place of business shall be inserted here) or you may deliver it there yourself. You must mail it or deliver it before the end of the 7 days. If you cancel the contract, any moneys you paid will be returned to you."

Effect of cancellation

123(4)      Upon the written cancellation of a contract under subsection (2),

(a) subject to subsection (6), every liability or obligation of the buyer under the contract is extinguished; and

(b) on the buyer's demand, the seller shall repay to the buyer immediately all amounts already paid by or on behalf of the buyer in respect of the contract, whether paid for or on account of the contract price or for or on account of any fee, cost of credit or other amount paid under or pursuant to or as incidental to the contract, and whether paid to the seller or another person, but the seller may retain any portion of the amounts so paid by the buyer for which services have been provided, and the portion to be so retained by the seller shall be calculated as that proportion of the amounts so paid by the buyer which bears the same mathematical relationship to the total of the amounts so paid as the period of the contract ending on the date of the cancellation bears to the total period of the contract.

Negotiation of new contract

123(5)      Upon receiving written notice of cancellation of a contract under subsection (2), the seller shall fulfil the seller's obligations under subsection (4) before attempting to renegotiate the contract or to negotiate another contract with the buyer.

Rights of cancellation

123(6)      The right of the buyer to cancel a contract under this Part is not affected by

(a) the partial consumption of the services by the buyer; or

(b) the partial performance of any services by the seller.

Reckoning of Time

123(7)      In reckoning the time for giving notice under this Part, Sundays and holidays shall be excluded.

Refund

123(8)      A seller who receives payments on a contract that does not meet the requirements of subsection (1) shall, on demand by the buyer, refund to the buyer all payments for services that have not been performed, and the contract is void thereafter.

S.M. 1989-90, c. 53, s. 23; S.M. 2005, c. 16, s. 21.

Prohibition

124(1)      No contract may be made between two parties to an existing contract unless the subsequent contract is for services that are distinctly different from the services to be provided under the existing contract, and a different term or a different commencement date does not constitute, for the purposes of this subsection, a distinct difference in the services to be provided.

Repayment

124(2)      A seller shall repay to the buyer, on demand, every amount paid on a new contract for services that are already included in an existing contract.

S.M. 1989-90, c. 53, s. 23.

Maximum term

125(1)      No contract shall be made for a term longer than 12 months.

Fee payable by instalments

125(2)      A seller shall not collect payment of a fee under a contract unless the fee is payable in more than one instalment and

(a) the amount of each instalment is approximately the same;

(b) the length of each time period covered by each instalment is approximately the same; and

(c) each instalment is payable on or shortly before the day a time period commences.

Refund

125(3)      A seller who receives payments in contravention of subsection (2) shall refund those payments to the buyer on demand.

S.M. 1989-90, c. 53, s. 23; S.M. 1998, c. 45, s. 2.

No provision for renewal

126         No contract to which this Part applies shall include any provision for the renewal of that contract prior to or upon the date of its expiry.

S.M. 1989-90, c. 53, s. 23.

PART XVI

INTERNET AGREEMENTS

"Internet" defined

127         In this Part, "Internet" means the open and decentralized global network connecting networks of computers and similar devices to each other for the electronic exchange of information using standardized communication protocols.

S.M. 2000, c. 32, s. 36.

Application

128         This Part applies to retail sale or retail hire-purchase agreements formed by Internet communications.

S.M. 2000, c. 32, s. 36.

Buyer may cancel if not provided information

129(1)      If a seller fails to provide prescribed information to a buyer in writing before entering into a retail sale or retail hire-purchase agreement with the buyer, the buyer may cancel the agreement before accepting delivery of the goods or services under the agreement.

Electronic methods of providing information

129(2)      For the purpose of subsection (1), a seller shall be considered to have provided the prescribed information to a buyer in writing if

(a) the information is sent to the e-mail address provided by the buyer to the seller for the provision of information related to the retail sale or retail hire-purchase agreement; or

(b) the information is made accessible to the buyer on the Internet in a manner that ensures that

(i) the buyer has accessed the information before entering into the agreement, and

(ii) the information is capable of being retained and printed by the buyer.

S.M. 2000, c. 32, s. 36; S.M. 2001, c. 10, s. 4.

Buyer may cancel for failure to deliver

130(1)      Before accepting delivery of goods or services under a retail sale or retail hire-purchase agreement, the buyer may cancel the agreement if the seller does not

(a) in the case of prescribed goods, deliver the goods by the delivery date specified in the agreement or by any other delivery date agreed to in writing, either on paper or by electronic communication;

(b) in the case of other goods, deliver the goods within 30 days after

(i) the delivery date specified in the agreement or any other delivery date agreed to in writing, either on paper or by electronic communication, or

(ii) if a delivery date cannot be determined under subclause (i), the date of the agreement;

(c) in the case of travel, transportation or accommodation services or prescribed services, begin to provide the services on the commencement date specified in the agreement or any other commencement date agreed to in writing, either on paper or by electronic communication; and

(d) in the case of other services, begin to provide the services within 30 days after the commencement date specified in the agreement or any other commencement date agreed to in writing, either on paper or by electronic communication.

Attempted delivery

130(2)      For the purpose of subsection (1), a seller is deemed to have delivered the goods or services under a retail sale or retail hire-purchase agreement

(a) if delivery was attempted but was refused by the buyer, on the day that delivery was attempted; or

(b) if delivery was attempted but not made because no person was available to accept delivery for the buyer, on the day that the buyer was given notice that the goods or services are available to be delivered or that the goods are available to be picked up by the buyer.

S.M. 2000, c. 32, s. 36; S.M. 2001, c. 10, s. 5.

Court may provide relief against cancellation

131         If in the opinion of a court it would be inequitable for an agreement to be cancelled under section 129 or 130, the court may make any order it considers appropriate.

S.M. 2000, c. 32, s. 36.

Notice of cancellation

132(1)      An agreement is cancelled under section 129 or 130 when a written notice of the cancellation is given in accordance with this section.

Method of giving notice

132(2)      A buyer may provide a notice of cancellation to the seller by personal delivery or by registered mail, fax, e-mail or any other method by which the buyer can obtain confirmation of delivery of the notice.

Wording of notice of cancellation

132(3)      A notice of cancellation is adequate if it indicates the intention of the buyer to cancel the agreement.

Effective date of cancellation

132(4)      A notice of cancellation that is given otherwise than by personal delivery is deemed to be given when sent.

S.M. 2000, c. 32, s. 36.

Effect of cancellation

133(1)      If an agreement is cancelled under section 129 or 130,

(a) every obligation of the buyer under the contract is extinguished; and

(b) the seller must refund to the buyer, within 30 days after the cancellation, all consideration paid by the buyer under the agreement, whether paid to the seller or any other person.

Delivery of services after cancellation

133(2)      If services are provided to a buyer under an agreement after the buyer has cancelled the agreement under section 129 or 130, the buyer may rescind the notice of cancellation by accepting the services. But the buyer shall not be considered to have rescinded the notice if the services are provided without the buyer being given an opportunity to refuse them.

Delivery of goods after cancellation

133(3)      If goods are delivered to a buyer under an agreement after the buyer has cancelled the agreement under section 129 or 130, the buyer may

(a) rescind the notice of cancellation by accepting the goods; or

(b) refuse to accept delivery of the goods or, having accepted delivery, return the goods, within 30 days after accepting delivery, to the seller unopened and in the same condition in which they were delivered, by any method that provides the buyer with confirmation of delivery to the seller.

Seller must accept return of goods

133(4)      The seller must accept a return of goods that were returned or refused delivery by a buyer under clause (3)(b).

Seller responsible for cost of returning goods

133(5)      The seller is responsible for the cost of returning goods under clause (3)(b).

Effective date of return

133(6)      Goods that are returned by the buyer under clause (3)(b) otherwise than by personal delivery are deemed for the purpose of that clause to have been returned when sent by the buyer to the seller.

S.M. 2000, c. 32, s. 36.

Buyer's recourse re credit card charges

134(1)      A buyer who has charged to a credit card account all or any part of the consideration payable under a retail sale or retail hire-purchase agreement may request the credit card issuer to cancel or reverse the credit card charge, and any associated interest or other charges, if

(a) the buyer has cancelled the agreement under section 129 or 130, and the consideration has not been refunded within the 30-day period referred to in clause 133(1)(b); or

(b) the agreement is unenforceable because of subsection 20(3) of The Electronic Commerce and Information Act and the consideration has not been refunded to the buyer within 30 days after the buyer notified the seller of the error referred to in that subsection.

Credit card issuer must reverse or cancel charges

134(2)      On receiving a request under subsection (1) that satisfies prescribed requirements, the credit card issuer must cancel or reverse the credit card charge and any associated interest or other charges.

Application

134(3)      This section applies despite any agreement to the contrary entered into before or after this Part comes into force.

S.M. 2000, c. 32, s. 36.

Other rights not affected

135         The rights of the buyer under this Part in respect of a retail sale or retail hire-purchase agreement are in addition to, and do not affect, any other right or remedy the buyer has under or in respect of the agreement or at law.

S.M. 2000, c. 32, s. 36.

PART XVII

COMPLIANCE AND ENFORCEMENT

RECORDS

Officials may require records

135.1(1)    The director, a consumer services officer or a person authorized by the director may require a person to provide records or copies of records the person is required to make and maintain under this Act, for the purpose of

(a) determining compliance with this Act, the terms and conditions of a licence or an order;

(b) verifying the accuracy or completeness of a record or of other information provided to the director, officer or authorized person; or

(c) performing any other duty or function that the director, officer or authorized person considers necessary or advisable in the administration or enforcement of this Act.

Duty to provide information

135.1(2)    A person required to provide records or copies of records under subsection (1) must do so.

S.M. 2013, c. 45, s. 15.

INSPECTIONS

General authority to inspect

135.2(1)    Subject to any conditions imposed by the director, a consumer services officer or person authorized by the director (in this section and sections 135.3, 135.4 and 135.5 referred to as an "inspector") may carry out any inspection, examination, audit or test reasonably required to

(a) determine compliance with this Act, the terms and conditions of a licence or an order;

(b) verify the accuracy or completeness of a record or of other information provided to the director or inspector; or

(c) perform any other duty or function that the director or inspector considers necessary or advisable in the administration or enforcement of this Act.

Right of entry

135.2(2)    In order to perform a duty or function under subsection (1) (in this section referred to as an "inspection"), the inspector may at any reasonable time, without a warrant, enter

(a) any business premises; or

(b) any other premises or place where the inspector has reasonable grounds to believe that records or property relevant to the administration or enforcement of this Act are kept.

Entry into dwelling only with consent or warrant

135.2(3)    An inspector may not enter premises occupied as a private residence except with the consent of the owner or occupant or with the authority of a warrant obtained in accordance with section 135.4.

Identification to be shown

135.2(4)    An inspector must show his or her identification if requested to do so in the context of an inspection.

Assistance to inspector

135.2(5)    The owner of the business carried on at the premises or the person in charge of the place of inspection or having custody or control of the relevant records or property must

(a) produce or make available to the inspector all records and property that the inspector requires for the inspection;

(b) provide any assistance or additional information, including personal information, that the inspector reasonably requires to carry out the inspection; and

(c) upon request, provide written answers to questions asked by the inspector.

Electronic records

135.2(6)    In order to inspect records that are maintained electronically at the place of inspection, the inspector may require the owner of the business carried on at the premises or the person in charge of the place of inspection or having custody or control of the relevant records to produce the records in the form of a printout or to produce them in an electronically readable format.

Inspector may make copies

135.2(7)    The inspector may use equipment at the place of inspection to make copies of relevant records and may remove the copies from the place of inspection for further examination.

Inspector may remove records to make copies

135.2(8)    An inspector who is not able to make copies of records at the place of inspection may remove them from the place to make copies. The inspector must make the copies as soon as practicable and return the original records to the person or place from which they were removed.

Obstruction

135.2(9)    No person shall hinder, obstruct or interfere with an inspector conducting an inspection under this section.

S.M. 2013, c. 45, s. 15.

Copies as evidence

135.3       A document certified by the director or an inspector to be a printout or copy of a record obtained under this Act

(a) is admissible in evidence without proof of the office or signature of the person purporting to have made the certificate; and

(b) has the same probative force as the original record.

S.M. 2013, c. 45, s. 15.

Warrant to enter and inspect

135.4(1)    A justice, upon being satisfied by information on oath that

(a) an inspector has been refused entry to any premises or place to carry out an inspection under section 135.2; or

(b) there are reasonable grounds to believe that

(i) an inspector would be refused entry to any premises or place to carry out an inspection under section 135.2, or

(ii) if an inspector were to be refused entry to any premises or place to carry out an inspection under section 135.2, delaying the inspection in order to obtain a warrant on the basis of the refusal could be detrimental to the inspection;

may at any time issue a warrant authorizing an inspector or any other person named in the warrant to enter the premises or place and carry out an inspection under section 135.2.

Application without notice

135.4(2)    A warrant under this section may be issued upon application without notice.

S.M. 2013, c. 45, s. 15.

Records to be made available for inspection, etc.

135.5       A person must

(a) make the records that he or she is required to maintain under this Act available, at the place where they are maintained, for inspection, examination or audit by an inspector; and

(b) if the records are not maintained in Manitoba, pay to the minister, upon receiving a statement from the director, the amount charged by the director for expenses incurred in inspecting, examining or auditing the records at the place where they are maintained.

S.M. 2013, c. 45, s. 15.

ORDERS

Order for compliance

135.6(1)    If, in the director's opinion, a person

(a) fails to comply with a provision of this Act, a term or condition of the person's licence or an order; or

(b) makes a false or misleading statement relating to a consumer transaction to which this Act applies, orally, or in a consumer agreement, form, letter or other document, or in any advertisement published by any means;

the director may issue a written order directed to the person.

Contents of order

135.6(2)    An order issued by the director under this section must set out the following:

(a) the name of the person to whom the order is directed;

(b) the action the person must take as set out in subsection (3);

(c) the date of the order and the time period within which the person must comply;

(d) the reasons for the order;

(e) a statement that the person has the right to appeal the order.

What a person may be required to do

135.6(3)    An order issued by the director under this section may require the person to do any one or more of the following:

(a) comply with a provision of this Act, a term or condition of the person's licence or an order;

(b) apply for licensing or registration;

(c) provide records or information to the director, a consumer services officer or a person authorized by the director to assist the director, officer or authorized person in carrying out their duties and functions under this Act;

(d) cease holding himself or herself out as being licensed or registered or exempt if the person is not licensed, registered or exempt under this Act;

(e) correct a false or misleading statement relating to a consumer transaction to which this Act applies that is made orally or in a consumer agreement, form, letter or other document or in any advertisement published by any means, or bring such a correction to the attention of consumers;

(f) do or refrain from doing one or more other things specified in the order within the specified time period;

(g) any other prescribed thing.

Duty to comply

135.6(4)    A person to whom a compliance order is directed must comply with it within the time period specified in the order, unless the person appeals the order within the time period specified in subsection 135.8(2).

S.M. 2013, c. 45, s. 15.

Service of order

135.7(1)    A copy of an order under section 135.6 must be given to or served on the person as follows:

(a) by delivering a copy of it to the person or to an officer or employee of the person;

(b) by sending a copy of it by registered mail, or by another service that provides the sender with proof of delivery, to the person at the last address known to the director for the person or the person's business;

(c) in any other manner prescribed in the regulations.

Deemed receipt

135.7(2)    An order sent in accordance with clause (1)(b) is deemed to have been received on the date shown on the confirmation of delivery obtained from the Canada Post Corporation or the other service.

Actual notice is sufficient

135.7(3)    Despite the fact that an order is not given or served in accordance with this section, it is sufficiently given or served if it actually came to the attention of the person for whom it was intended.

S.M. 2013, c. 45, s. 15.

Appeal of compliance order

135.8(1)    An order under section 135.6 (compliance order) may be appealed to the court.

How to appeal

135.8(2)    To appeal an order, the person to whom the order is directed must file an application with the court within 14 days after a copy of the order is given to or served on the person. The person must provide a copy of the application to the director as soon as practicable after filing it, and the director is a party to the appeal.

Court's decision

135.8(3)    The court may

(a) confirm or vary the compliance order; or

(b) allow the appeal, on any terms or conditions the court considers appropriate.

The court may make any order as to the costs of the appeal that it considers appropriate.

S.M. 2013, c. 45, s. 15.

Public disclosure

135.9       The director may issue public reports disclosing details of compliance orders under section 135.6 that have been given or served. This disclosure may include personal information.

S.M. 2013, c. 45, s. 15.

Court-ordered compliance

135.10(1)   If a person to whom a compliance order is directed fails to comply with it and the order has not been appealed (or on an appeal, the appeal has not been allowed), the director may apply to the court for an order directing compliance. An application may be made without notice if the court considers it appropriate in the circumstances.

Order

135.10(2)   The court may order compliance on any conditions that the court considers appropriate and may make any other order it considers necessary to ensure compliance.

S.M. 2013, c. 45, s. 15.

Injunction

135.11      On application by the director, and on being satisfied that there is reason to believe that a person has done, is doing or is about to do anything that contravenes this Act, the court may issue an injunction ordering the person to refrain from doing that thing.

S.M. 2013, c. 45, s. 15.

Application re order to pay costs

135.12(1)   This section applies to payday lenders, direct sellers, credit grantors and any other prescribed persons.

Circumstances in which director may charge costs

135.12(2)   The director may charge the costs referred to in subsection (3) to a person to whom this section applies in any of the following circumstances:

(a) the director determines that the person has failed to comply with a provision of this Act, a term or condition of the person's licence or an order;

(b) the director is unable to determine whether the person is in compliance because the person

(i) has failed to produce records or property, or make them available for inspection, in the form required by an inspector,

(ii) has failed to answer or provide satisfactory answers to questions asked by an inspector, or

(iii) has failed to provide the assistance or additional information that an inspector reasonably requires to perform the inspection.

Costs that may be charged

135.12(3)   In the circumstances described in subsection (2), the director may, by written order, require a person to whom this section applies to pay the following costs:

(a) fees paid to an auditor, private investigator or other expert retained by the director in relation to an inspection;

(b) the cost of any equipment or software required by an inspector or the director to read or interpret the person's records;

(c) the cost of obtaining a warrant;

(d) the costs of legal services provided to the director in relation to an inspection or review of records or practices of the person, including legal services provided by a department or branch of the government.

Service of order, etc.

135.12(4)   Section 135.7 applies to the giving or serving of an order made under this section, with necessary changes.

Appeal of costs order

135.12(5)   An order made under this section may be appealed to the court. Section 135.8 applies to an order made under this section, with necessary changes.

Costs are a debt

135.12(6)   The costs charged under subsection (2) are a debt owing to the government by that person. The person must pay it within 30 days after being given or served the order unless the person appeals it within the time period specified in subsection 135.8(2).

Certificate

135.12(7)   If the order has not been appealed (or on an appeal, the appeal has not been allowed), the director may file with the court a certificate certifying the amount of the debt. When so filed, the certificate has the same force and effect as a judgment of the court for the recovery of a debt in the amount specified in the certificate plus the cost of filing the certificate.

S.M. 2013, c. 45, s. 15.

ADMINISTRATIVE PENALTIES

Administrative penalty: failure to comply

136(1)      If a consumer services officer, or a person authorized by the director, is of the opinion that a person has failed to comply with a prescribed provision of this Act or the regulations, he or she may issue a notice in writing requiring the person to pay an administrative penalty in the amount set out in the regulations.

Maximum amount

136(2)      The maximum penalty that may be imposed on an individual is $5,000. The maximum penalty that may be imposed on a corporation is $20,000.

Notice

136(3)      A notice of administrative penalty must set out

(a) the provision of this Act or the regulations that the person failed to comply with;

(b) the amount of the penalty determined in accordance with the regulations;

(c) when and how the penalty must be paid; and

(d) a statement of the bases under subsection (5) upon which the person may appeal the matter to the director within 14 days after being served with the notice.

Serving the notice

136(4)      A notice of administrative penalty must be served on the person in non-compliance. It may be served personally or may be delivered to the person's last known address by a delivery service that provides the sender with acknowledgment of receipt.

Appeal to the director

136(5)      Within 14 days after being served with a notice, the person required to pay the administrative penalty may appeal the matter to the director by giving the director a notice of appeal setting out one or more of the following bases of appeal:

(a) that the finding of non-compliance with this Act or the regulations was incorrect;

(b) that the amount of the penalty was not determined in accordance with the regulations;

(c) that the amount of the penalty is not justified in the public interest.

The requirement to pay the penalty is stayed until the director decides the matter.

Notice of hearing

136(6)      Upon receiving a notice of appeal, the director must

(a) fix a date, time and place for hearing the appeal; and

(b) give the person appealing, and the person who issued the notice of administrative penalty, written notice of the hearing at least five days before the hearing date.

Decision of the director

136(7)      After hearing the appeal, the director must determine whether or not the person has failed to comply with a provision of this Act or the regulations, and

(a) confirm or revoke the administrative penalty; or

(b) vary the amount of the penalty if the director believes that

(i) it was not determined in accordance with the regulations, or

(ii) it is justified in the public interest.

Appeal to court

136(8)      Within 30 days after the date of the director's decision under subsection (7), the person required to pay the administrative penalty may appeal the decision by filing a notice of appeal with the court and serving a copy on the director.

Director is a party

136(9)      The director is a party to an appeal under subsection (8), and is entitled to be heard, by counsel or otherwise, upon the appeal.

Decision of court

136(10)     On hearing the appeal, the court must take into account the considerations set out in subsection (5), and may confirm the director's decision, quash it or vary it in any manner that it considers appropriate.

Payment

136(11)     Subject to an appeal under subsection (5) or (8), a person named in a notice of administrative penalty must pay the amount of the penalty within 30 days after the notice is served.

Debt due to government

136(12)     If an administrative penalty is not paid

(a) within 30 days after notice of the penalty is served; or

(b) if the penalty is appealed, within 30 days after the decision

(i) of the director, or

(ii) if the matter is appealed to the court, of the court;

the amount of the penalty is a debt due to the government.

Certificate registered in court

136(13)     The director may certify a debt referred to in subsection (12), or any part of such a debt that has not been paid. The certificate may be registered in court and, once registered, may be enforced as if it were a judgment of the court.

No offence to be charged if penalty paid

136(14)     A person who pays an administrative penalty under this section for failure to comply with a provision of this Act or the regulations may not be charged with an offence respecting that failure, unless the failure continues after the penalty is paid.

Public disclosure of administrative penalties

136(15)     The director may issue public reports disclosing details of administrative penalties issued under this section. This disclosure may include personal information.

S.M. 2005, c. 16, s. 22; S.M. 2012, c. 18, s. 4; S.M. 2013, c. 45, s. 17.

PENALTIES FOR OFFENCES

Offence

136.1(1)    A person who contravenes or fails to comply with a provision of this Act or the regulations is guilty of an offence, and is liable on summary conviction to a fine of not more than

(a) $300,000; or

(b) three times the amount obtained by the defendant as a result of the offence;

whichever is greater, or to imprisonment for not more than three years, or both.

Restitution

136.1(2)    If a person is convicted of an offence under subsection (1), the court must, on the application of the Minister of Justice and Attorney General or of a person affected by the offence or their representative,

(a) consider whether the defendant should pay restitution to an affected person for loss of or damage to property suffered as a result of the commission of the offence; and

(b) if the court considers an order to be just in the circumstances, order the defendant to pay an amount as restitution if the amount is readily ascertainable.

Order filed in court

136.1(3)    If an amount is ordered to be paid as restitution under subsection (2), the applicant may file the order in the court, and on being filed the order may be enforced in the same manner as a judgment of the court.

Person must pay restitution ordered

136.1(4)    Every person who is ordered to pay restitution under subsection (2) must make the payment in accordance with the order.

S.M. 1989-90, c. 53, s. 17; S.M. 2005, c. 16, s. 14; S.M. 2010, c. 31, s. 3; S.M. 2013, c. 45, s. 7.

Directors and officers of corporations

136.2       If a corporation commits an offence under this Act, a director or officer of the corporation who authorized, permitted or acquiesced in the commission of the offence is also guilty of the offence.

S.M. 2005, c. 16, s. 15; S.M. 2013, c. 45, s. 8.

Limitation period for complaint

136.3       A complaint or information charging any person with an offence under this Act shall be laid within two years from the time the offence was committed.

S.M. 2013, c. 45, s. 9.

PART XVIII

PAYDAY LOANS

Definitions

137         The following definitions apply in this Part.

"applicant" means an applicant for a licence or for renewal of a licence under this Part. (« demandeur »)

"cash card" means, subject to the regulations, a card or other device issued to a borrower to enable him or her to access the money advanced under a payday loan. (« carte de paiement »)

"Internet payday loan" means a payday loan under an agreement between a borrower and a lender that is formed by Internet communications or by a combination of Internet and fax communications. (« prêt de dépannage par Internet »)

"licence" means a licence issued under this Part, unless the context requires otherwise. (« licence »)

"payday lender" means a person who offers, arranges or provides a payday loan. (« prêteur »)

"payday loan" means an advance of money in exchange for a post-dated cheque, a pre-authorized debit or a future payment of a similar nature, but not for any guarantee, suretyship, overdraft protection or security on property and not through a margin loan, pawnbroking, a line of credit or a credit card. (« prêt de dépannage »)

"replacement loan" means

(a) a payday loan arranged or provided by a payday lender as part of a series of transactions or events that results in the borrower's debt under another payday loan previously arranged or provided by that payday lender being repaid in whole or in part; and

(b) a transaction or series of transactions specified in the regulations. (« prêt de remplacement »)

"wages" includes

(a) salary; and

(b) periodic payments in respect of loss of future income or loss of earning capacity. (« salaire »)

S.M. 2006, c. 31, s. 3; S.M. 2009, c. 12, s. 2.

Application

138(1)      Subject to the regulations, this Part applies to a payday loan if

(a) the amount initially advanced under the loan is no more than $1,500 and its initial term, ignoring any extension or renewal, is no longer than 62 days; or

(b) it is a replacement loan.

Limited application to existing loans

138(2)      A section of this Part does not apply in respect of a loan that was made before the day that section came into force, but it does apply in respect of any extension or renewal of such a loan on or after that day.

S.M. 2009, c. 12, s. 3.

LICENSING

Licence required to provide payday loans

139(1)      No person shall offer, arrange or provide a payday loan from a location except under the authority of a licence issued to the person or the person's employer for that location.

Use of name

139(2)      No payday lender shall offer, arrange or provide a payday loan under a business name or style that differs from the business name or style specified in the lender's licence.

S.M. 2006, c. 31, s. 3.

Application for licence or renewal of licence

140(1)      A person may apply, in a form approved by the director, for

(a) a licence authorizing the person to offer, arrange or provide payday loans at a location specified in the licence; or

(b) a renewal of a licence.

More than one licence required

140(2)      A person who wishes to offer, arrange or provide payday loans at more than one location must apply for a separate licence for each location.

Applicant to provide information

140(3)      When applying for a licence or a renewal of a licence, the applicant must provide

(a) the information required by the regulations or the application form; and

(b) any additional information requested by the director.

Licence fee

140(4)      Before a licence is issued or renewed by the director, the applicant must pay the licence or renewal fee specified in the regulations.

Bond or security required

140(5)      Before a licence is issued or renewed by the director, the applicant must provide the government with

(a) a bond to secure the performance of obligations under this Part and the regulations; or

(b) a deposit of cash or securities acceptable to the director.

The terms, conditions and amount of the bond or other security must be satisfactory to the director and must meet the requirements of the regulations.

S.M. 2006, c. 31, s. 3; S.M. 2012, c. 18, s. 5.

Licence not transferable or assignable

141(1)      A licence is not transferable or assignable.

Terms and conditions of licence

141(2)      The director, if he or she considers it in the public interest to do so, may impose terms or conditions on a licence at the time of issuing or renewing the licence, or at any other time by written notice to the holder of the licence. A licence is also subject to any terms or conditions imposed by regulation.

Duration of licence

141(3)      A licence ceases to be valid one year after the day it is issued or, if it is renewed, on the next anniversary date of its issuance, unless it is further renewed.

Validity during consideration of renewal application

141(4)      Despite subsection (3), if a payday lender applies for a renewal of his or her licence before it would otherwise cease to be valid under that subsection, the licence continues to be valid until

(a) it is renewed; or

(b) the lender is served with a copy of the director's decision not to renew it.

S.M. 2006, c. 31, s. 3.

Refusal to issue licence

142(1)      The director may refuse to issue a licence to an applicant if

(a) the applicant has been convicted of

(i) an offence under this Act or The Business Practices Act,

(ii) an offence under the Criminal Code (Canada), or

(iii) any other offence under the laws of a jurisdiction in or outside Canada that, in the director's opinion, involves a dishonest action or intent;

(b) the applicant is an undischarged bankrupt;

(c) the applicant provides incomplete, false, misleading or inaccurate information in support of the application;

(d) a licence issued to the applicant

(i) under this Act, or

(ii) by an authority responsible for issuing licences with respect to the lending of money in any jurisdiction,

is suspended or has been cancelled, or the applicant has applied for a renewal of such a licence and the renewal has been refused;

(d.1) the applicant has failed to comply with any order, direction or other requirement issued or imposed by an authority responsible for issuing licences with respect to the lending of money in any jurisdiction in or outside Canada;

(e) the applicant fails to meet any qualification or satisfy any requirement of this Part or the regulations;

(f) the director has reason to believe, based on past conduct, that the applicant will not carry on business according to law or with integrity or honesty; or

(g) in the director's opinion, it is not in the public interest to issue a licence to the applicant.

Where applicant is a corporation or partnership

142(2)      The director may refuse to issue a licence to

(a) a corporation, if a director or officer of the corporation could be refused a licence under subsection (1); or

(b) a partnership, if a member of the partnership could be refused a licence under subsection (1).

Reasons for refusal

142(3)      The director must give written reasons for a decision to refuse to issue a licence.

S.M. 2006, c. 31, s. 3; S.M. 2012, c. 18, s. 6.

Refusal to renew, cancellation or suspension

143(1)      Subject to subsection (2), the director may refuse to renew or may cancel or suspend a payday lender's licence

(a) for any reason for which the director may refuse to issue a licence under section 142;

(b) if the lender fails to provide information required by the director or the regulations, or provides incomplete, false, misleading or inaccurate information to the director;

(c) if the lender contravenes or fails to comply with this Act or the regulations;

(c.1) if the lender contravenes or fails to comply with a director's order; or

(d) if the lender contravenes or fails to comply with a term or condition of the licence.

Notice required

143(2)      Before refusing to renew or cancelling or suspending a licence, the director must notify the payday lender, in writing,

(a) that the director intends to refuse to renew the licence, or to cancel or suspend it, and why; and

(b) that the lender may, within 14 days after being served with the notice,

(i) make a written submission to the director as to why the renewal should not be refused or the licence should not be cancelled or suspended, or

(ii) contact the director to arrange a date and time for a hearing before the director.

Extension of time

143(3)      The director may extend the 14-day period referred to in clause (2)(b).

Where no submission made or hearing arranged

143(4)      If the payday lender does not make a written submission or arrange for and attend a hearing under clause (2)(b), the director may take the action stated in the notice.

Decision after submission or hearing

143(5)      After considering a written submission or holding a hearing, the director may refuse to renew the licence or may cancel or suspend the licence.

When cancellation or suspension becomes effective

143(6)      A decision to cancel or suspend a payday lender's licence takes effect when notice of the decision is served on the lender, or on the date specified in the decision, whichever is later.

Reasons for decision

143(7)      The director must give written reasons for a decision to refuse to renew, or to cancel or suspend, a licence.

S.M. 2006, c. 31, s. 3; S.M. 2012, c. 18, s. 7; S.M. 2013, c. 45, s. 18.

Appeal

144(1)      A decision of the director to not issue or renew a licence, or to cancel or suspend a licence, may be appealed to the court by the person who applied for or held the licence.

How to appeal

144(2)      An appeal to the court must be made by filing an application with the court within 14 days after a copy of the director's decision is served on the person appealing. As soon as practicable after filing the application, the person appealing must serve a copy of the application on the director.

Court's decision

144(3)      The court may

(a) confirm the director's decision; or

(b) allow the appeal, on any terms and conditions the court considers appropriate.

The court may make any order as to costs that the court considers appropriate.

S.M. 2006, c. 31, s. 3.

Director may apply for injunction

145(1)      The director may apply to the court for an injunction restraining a person from offering, arranging or providing payday loans without a licence.

Court may grant injunction

145(2)      The court may grant the injunction against the person if it is satisfied that the person offered, arranged or provided a payday loan without a licence or there is reason to believe that the person will do so.

S.M. 2006, c. 31, s. 3.

Giving of notices, etc. by the director

146(1)      A notice, decision or other document to be given to or served on a person by the director under this Part must be given or served

(a) by delivering a copy of it to the person or to an officer or employee of the person;

(b) by sending a copy of it by registered mail, or by another service that provides the sender with proof of delivery, to the person at the last address known to the director for the person or the person's business; or

(c) in any other manner prescribed in the regulations.

Deemed receipt

146(2)      A notice, decision or other document sent to a person in accordance with clause (1)(b) is deemed to have been received on the date shown on the confirmation of delivery obtained from the Canada Post Corporation or the other service.

Actual notice is sufficient

146(3)      Despite the fact that a notice, decision or other document is not given or served in accordance with this section, it is sufficiently given or served if it actually came to the attention of the person for whom it was intended within the time for giving or serving it under this Part.

S.M. 2006, c. 31, s. 3; S.M. 2012, c. 18, s. 8.

OBLIGATIONS AND PROHIBITIONS

Limit re cost of credit

147(1)      No payday lender shall, in relation to a payday loan,

(a) charge, or require or accept the payment of; or

(b) arrange for or permit any other person to charge or to require or accept payment of;

any amount or consideration that would result in the total cost of credit, or any component of the cost of credit, of the loan being greater than the maximum allowed by regulation.

Consequences of failure to comply

147(2)      If a payday lender contravenes subsection (1),

(a) the borrower is not liable for any amount charged as a cost of credit for the payday loan; and

(b) the lender must reimburse the borrower, in cash, immediately upon demand by the borrower or the director, for

(i) the total of all amounts paid, and

(ii) the value of any other consideration given,

in respect of the borrower's cost of credit for the payday loan, including any amount paid or consideration given to a person other than the payday lender.

This is in addition to any penalty that the lender may be subject to under any other provision of this Act or the regulations.

S.M. 2006, c. 31, s. 3; S.M. 2009, c. 12, s. 13.

Documents to be given at time of initial advance

148(1)      At the time of making the initial advance under a payday loan or providing the borrower with a cash card or other device that enables the borrower to access funds under a payday loan, the payday lender must give to the borrower

(a) a document, in a form satisfactory to the director, that

(i) states the date and time of day that the initial advance is being made or the card or other device is being provided,

(ii) states that the loan is a high-cost loan,

(iii) gives notice of the borrower's right to cancel the loan within 48 hours after receiving the initial advance or the card or other device,

(iv) includes a form of notice that the borrower may use to give written notice that he or she is cancelling the loan, and

(v) includes a form of receipt that the lender must use to acknowledge receipt of what was paid or returned by the borrower upon cancelling the loan; and

(b) any other documents or information required by regulation.

This is in addition to any other document or information the lender must give to the borrower under this Act.

Documents and information must be clear

148(2)      Documents and information required to be given under subsection (1) must be clear and understandable, and the required information must be prominently displayed in the document.

Interpretation of ambiguous statement

148(3)      If a provision or statement in a payday loan agreement or in any related document provided to the borrower is ambiguous, it must be construed in favour of the borrower.

S.M. 2006, c. 31, s. 3; S.M. 2009, c. 12, s. 4; S.M. 2013, c. 54, s. 19.

Cash card

148.1(1)    If a cash card is issued in respect of a payday loan, the lender must

(a) provide to the borrower, on demand by the borrower and at no cost to the borrower, a statement of the cash card balance; and

(b) pay to the borrower in cash, on demand by the borrower or the director and at no cost to the borrower, the amount of the cash card balance

(i) if the balance is less than the prescribed amount, or $25 if no amount is prescribed, or

(ii) if the loan has been repaid and the card has expired.

Balance applied to repayment

148.1(2)    Despite clause (1)(b), but subject to the regulations, the lender may apply the cash card balance as payment towards the loan if the borrower has failed to repay the loan by the end of the term of the payday loan agreement.

S.M. 2009, c. 12, s. 5.

Borrower may cancel within 48 hours

149(1)      A borrower may cancel a payday loan within 48 hours — excluding Sundays and other holidays — after receiving the initial advance or a cash card or other device enabling the borrower to access funds under the loan.

Additional cancellation rights

149(2)      In addition to having a cancellation right under subsection (1), a borrower may cancel a payday loan at any time, if

(a) the payday lender did not notify the borrower of his or her right under subsection (1) to cancel the loan; or

(b) the notice of the right to cancel given to the borrower does not meet the requirements of section 148.

"Payday lender" defined

149(3)      In subsections (4) and (5), "payday lender" includes an officer or employee of the payday lender at the location at which the payday loan was arranged or provided.

Procedure for cancelling loan

149(4)      To cancel a payday loan under subsection (1) or (2), the borrower must

(a) give written notice of the cancellation to the payday lender; and

(b) repay, by cash, certified cheque or money order or in a prescribed manner, the outstanding balance of the initial advance, less any cost of credit that was paid by or on behalf of the borrower or deducted or withheld from the initial advance.

Form of repayment

149(5)      For the purpose of clause (4)(b),

(a) if the initial advance was made in the form of a cheque, a return of the unnegotiated cheque to the payday lender is to be considered a repayment of the initial advance; and

(b) if the initial advance was made in the form of a cash card or other device that enabled the borrower to access funds under the loan, returning that card or device to the payday lender is to be considered a repayment of the initial advance to the extent of the cash or credit balance remaining on the card or device.

Payday lender to give receipt

149(6)      Upon the cancellation of a payday loan under this section, the payday lender must immediately give the borrower a receipt, in the form referred to in subclause 148(1)(a)(v), for what the borrower paid or returned to the payday lender upon cancelling the loan.

Effect of cancellation

149(7)      The cancellation of a payday loan under this section extinguishes every liability and obligation of the borrower under, or related to, the payday loan agreement.

No fee on cancellation

149(8)      No payday lender shall

(a) charge, or require or accept the payment of; or

(b) arrange for or permit any other person to charge, or to require or accept the payment of;

any amount or consideration for, or as a consequence of, the cancellation of a payday loan under this section.

Refund to borrower on cancellation of loan

149(9)      Upon the cancellation of a payday loan under this section, the payday lender must immediately reimburse the borrower, in cash, for all amounts paid, and the value of any consideration given, by or on behalf of the borrower as a cost of credit for the loan, less any amount deducted or withheld from the initial advance or from the repayment of it under clause (4)(b).

Cancellation rights in addition to other rights

149(10)     The cancellation rights under this section are in addition to, and do not affect, any other right or remedy the borrower has under the payday loan agreement or at law.

S.M. 2006, c. 31, s. 3.

No security to be taken

150         No payday lender shall require, take or accept, directly or indirectly,

(a) real or personal property;

(b) an interest in real or personal property; or

(c) a guarantee;

as security for the payment of a payday loan or the performance of an obligation under a payday loan agreement.

S.M. 2006, c. 31, s. 3.

Wage assignments not valid

151(1)      An assignment of wages is not valid if it is given in consideration of a payday loan or an advance under a payday loan, or to secure or facilitate a payment in relation to a payday loan.

Requesting or requiring wage assignment prohibited

151(2)      No payday lender shall request or require a person to make an assignment of wages in relation to a payday loan.

"Assignment of wages" defined

151(3)      In this section, "assignment of wages" includes an order or direction by an employee to pay all or any part of his or her wages to another person.

S.M. 2006, c. 31, s. 3.

Maximum amount of loan

151.1(1)    No payday lender shall enter into a payday loan agreement with a borrower for a loan that exceeds the proportion of the borrower's net pay prescribed by regulation.

Consequence of failure to comply

151.1(2)    If a payday lender contravenes subsection (1) and the borrower has not misrepresented to the lender the amount of the borrower's net pay,

(a) the borrower is not liable for any amount charged as a cost of credit for the payday loan; and

(b) the lender must immediately reimburse the borrower, in cash, on demand by the borrower or the director, for

(i) the total of all amounts paid, and

(ii) the value of any other consideration given,

as a cost of credit for the loan, including any amount paid or consideration given to a person other than the payday lender.

This is in addition to any penalty that the lender may be subject to under any other provision of this Act or the regulations.

S.M. 2009, c. 12, s. 6.

Limit on charges for extension or renewal of term or for replacement loan

152(1)      No payday lender shall, in relation to a transaction or series of transactions involving a replacement loan or the extension or renewal of a payday loan,

(a) charge or require or accept the payment of; or

(b) arrange for or permit any other person to charge or to require or accept the payment of;

any amount or consideration except as permitted by regulation.

Consequences of failure to comply

152(2)      If a payday lender contravenes subsection (1),

(a) the borrower is not liable for any amount charged

(i) for the extension or renewal of the loan or as a cost of credit relating to the extension or renewal, or

(ii) as a cost of credit in relation to the replacement loan; and

(b) the lender must immediately reimburse the borrower, in cash, upon demand by the borrower or the director, for

(i) the total of all amounts paid, and

(ii) the value of any other consideration given,

for the extension or renewal of the payday loan or as a cost of credit for the replacement loan, including any amount paid or consideration given to a person other than the payday lender.

This is in addition to any penalty that the lender may be subject to under any other provision of this Act or the regulations.

S.M. 2006, c. 31, s. 3; S.M. 2009, c. 12, s. 14.

Limit to amounts payable for default

153(1)      No payday lender shall, in relation to any default by the borrower under a payday loan,

(a) charge or require or accept the payment of; or

(b) arrange for or permit any other person to charge or to require or accept the payment of;

any penalty or other amount except as permitted by regulation.

Consequences of failure to comply

153(2)      If a payday lender contravenes subsection (1),

(a) the borrower is not liable for any amount charged in relation to his or her default under the payday loan; and

(b) the lender must immediately reimburse the borrower, in cash, upon demand by the borrower or the director, for any amount paid by the borrower in respect of that default.

This is in addition to any penalty that the lender may be subject to under any other provision of this Act or the regulations.

S.M. 2006, c. 31, s. 3; S.M. 2009, c. 12, s. 15.

Concurrent loans prohibited

154(1)      No payday lender shall offer, arrange or provide a payday loan to a borrower who is indebted to the lender under an existing payday loan, unless the new loan is a replacement loan and, immediately after the initial advance under the new loan is made, the borrower is no longer indebted under the existing loan.

Consequences of failure to comply

154(2)      If a payday lender contravenes subsection (1),

(a) the borrower is not liable for any amount charged as a cost of credit for the new loan; and

(b) the lender must reimburse the borrower, in cash, immediately upon demand by the borrower or the director, for

(i) the total of all amounts paid, and

(ii) the value of any other consideration given,

in respect of the borrower's cost of credit for the new loan, including any amount paid or consideration given to a person other than the payday lender.

This is in addition to any penalty that the lender may be subject to under any other provision of this Act or the regulations.

S.M. 2006, c. 31, s. 3; S.M. 2009, c. 12, s. 16.

Discounting prohibited

154.1       No payday lender shall discount the principal amount of the payday loan by deducting or withholding from the advance an amount representing any portion of the cost of credit or any component of the cost of credit.

S.M. 2009, c. 12, s. 7.

Tied selling restricted

154.2       No payday lender shall make a payday loan contingent on the purchase of another product or service, unless the borrower's cost of it is included in the borrower's cost of credit for the payday loan.

S.M. 2009, c. 12, s. 7.

Joint liability for refund

155         If a payday loan is arranged by one payday lender and provided by another payday lender, both lenders are jointly and severally liable to the borrower for any amount to be refunded or reimbursed to the borrower under this Part.

S.M. 2006, c. 31, s. 3.

Information to be posted

156         A payday lender must post signs at each location at which the lender offers, arranges or provides payday loans. The signs must be posted prominently and in accordance with the regulations, and must clearly and understandably set out, in the form required by the regulations,

(a) all components of the cost of credit, including all fees, charges, penalties, interest and other amounts and consideration for a representative payday loan transaction; and

(b) any other information required by the regulations.

S.M. 2006, c. 31, s. 3; S.M. 2009, c. 12, s. 17.

Records to be kept

157         A payday lender must maintain records in accordance with the regulations, including records of all payday loans that it offers, arranges or provides, and all payday loan agreements that it enters into.

S.M. 2006, c. 31, s. 3.

158         [Repealed]

S.M. 2006, c. 31, s. 3; S.M. 2013, c. 45, s. 19.

159         [Repealed]

S.M. 2006, c. 31, s. 3; S.M. 2012, c. 18, s. 9; S.M. 2013, c. 45, s. 19.

160 and 161   [Repealed]

S.M. 2006, c. 31, s. 3; S.M. 2013, c. 45, s. 19.

161.1       [Repealed]

S.M. 2009, c. 12, s. 8; S.M. 2012, c. 18, s. 10; S.M. 2013, c. 45, s. 19.

161.2       [Repealed]

S.M. 2009, c. 12, s. 8; S.M. 2012, c. 18, s. 11; S.M. 2013, c. 45, s. 19.

161.3       [Repealed]

S.M. 2009, c. 12, s. 8; S.M. 2012, c. 18, s. 12; S.M. 2013, c. 45, s. 19.

161.4       [Repealed]

S.M. 2009, c. 12, s. 8; S.M. 2012, c. 18, s. 13; S.M. 2013, c. 45, s. 19.

161.5       [Repealed]

S.M. 2009, c. 12, s. 8; S.M. 2012, c. 18, s. 14; S.M. 2013, c. 45, s. 19.

FINANCIAL LITERACY FUND

Fund established

161.6(1)    The Manitoba Payday Borrowers' Financial Literacy Fund is hereby established for the purpose of funding, or supplementing the funding of, programs designed to improve the financial literacy of borrowers and potential borrowers of money under payday loans.

Deposit in Consolidated Fund

161.6(2)    Money in the fund is to be deposited in a separate, interest-bearing account in the Consolidated Fund in trust for the fund.

Payments into the fund

161.6(3)    Despite The Financial Administration Act, the following are to be paid or credited to the fund:

(a) the levies paid under section 161.7 (financial literacy support levy);

(b) amounts authorized to be so paid and applied by an Act of the Legislature;

(c) interest and other income earned on the amounts paid or credited to the fund.

Management of fund

161.6(4)    The minister is responsible for managing the fund, and may make or authorize payments from the fund

(a) for the purpose of the fund; and

(b) to pay administrative expenses of operating the fund.

Annual report

161.6(5)    For each fiscal year, the annual report of the department over which the minister presides must include a report of the accounts and transactions of the fund.

S.M. 2009, c. 12, s. 8.

Financial literacy support levy

161.7       Subject to the regulations, a licensed payday lender must pay to the government each year, at the time or times prescribed by regulation, a financial literacy support levy. The amount of the levy is to be determined in accordance with the regulations.

S.M. 2009, c. 12, s. 8.

GUIDELINES AND REGULATIONS

Guidelines re payday loan agreements

162         To assist payday lenders in developing payday loan agreements that are clear and understandable, the director may issue guidelines about the form of such agreements.

S.M. 2006, c. 31, s. 3.

Regulations

163(1)      The Lieutenant Governor in Council may make regulations

(a) exempting any class of payday loans from the application of this Part or any provision of this Part;

(a.1) extending or limiting the meaning of "cash card";

(a.2) specifying transactions or series of transactions for the purpose of clause (b) of the definition "replacement loan" in section 137;

(b) exempting credit grantors or classes of credit grantors from the application of this Part or any provision of it;

(c) respecting licences, including

(i) the form and content of applications for licences and renewals of licences,

(ii) qualifications of, and requirements to be met by, applicants and payday lenders,

(iii) information and records to be provided to the director by applicants and payday lenders,

(iv) licence fees and licence renewal fees,

(v) the form of a licence, and

(vi) the terms and conditions of a licence;

(c.1) for the purpose of protecting borrowers, prescribing responsibilities of payday lenders and governing their activities;

(d) respecting bonds and other security, including

(i) the terms, conditions and amount of a bond or other security, and

(ii) the forfeiture of a bond and other security, and disposition of proceeds of forfeiture;

(e) defining "cost of credit", or extending or limiting the meaning of that expression, for the purposes of this Part;

(e.1) respecting the timing or manner of delivery of advances under payday loans;

(f) for the purpose of section 146, respecting the manner of giving or serving notices, decisions and other documents;

(f.1) for the purpose of section 147,

(i) fixing the maximum cost of credit for a payday loan, or establishing a rate, formula or tariff for determining it, and

(ii) fixing the maximum amounts for components of the cost of credit, or establishing rates, formulas or tariffs for determining them;

(g) for the purpose of clause 148(1)(b), respecting documents and information that a payday lender must provide to a borrower;

(g.1) respecting cash cards, including

(i) prescribing the cash card balance below which the borrower is entitled to a cash payment under clause 148.1(1)(b), and

(ii) respecting the circumstances and manner in which a cash card balance may be applied under subsection 148.1(3) to the outstanding balance of a payday loan;

(h) for the purpose of subsection 149(7), specifying whether a liability or obligation is, or is not, related to a payday loan agreement;

(h.1) for the purpose of section 151.1, defining "net pay" and prescribing the proportion of a borrower's net pay that must not be exceeded by a payday loan;

(i) for the purpose of section 152, prescribing fees or costs — or establishing rates, formulas or tariffs for determining fees or costs — that may be charged, required or accepted in relation to a replacement loan or an extension or renewal of a payday loan;

(i.1) for the purpose of section 153, prescribing a penalty or other amount — or establishing a rate, formula or tariff for determining a penalty or other amount — that may be charged, required or accepted in relation to a default by the borrower under a payday loan;

(i.2) specifying circumstances in which no amount may be charged, required or accepted in respect of a payday loan, the extension or renewal of a payday loan, or a default under a payday loan;

(j) for the purpose of section 156, respecting the posting of signs, and the form and content of information to be placed on the signs;

(k) for the purpose of section 157, respecting the records to be maintained by payday lenders, including the length of time for which and location at which records must be retained;

(l) respecting the information, including personal information, that payday lenders are required to provide to the director and the times, form and manner in which the information is to be provided;

(m) respecting Internet payday loans;

(n) [repealed] S.M. 2013, c. 45, s. 19;

(o) respecting advertising in relation to payday loans;

(p) respecting the collection practices of payday lenders, including regulations that restrict or prohibit activities that are not restricted or prohibited under Part XII;

(q) respecting the financial literacy support levy, including

(i) prescribing the amount of the levy or a rate or formula for determining the amount of the levy,

(ii) prescribing the time for payment of the levy, and

(iii) requiring payday lenders to file reports or returns of information that the director considers necessary to determine or verify the amount of the levy payable by them;

(r) respecting any other matter the Lieutenant Governor in Council considers necessary for the administration of this Part.

Scope and application of regulation

163(2)      A regulation under subsection (1)

(a) may be general or particular in its application; and

(b) may establish classes of payday loans, payday lenders or borrowers and may apply differently to different classes.

Regulations about Internet payday loans

163(3)      Without limiting clause (1)(m), a regulation made under that clause may do one or more of the following:

(a) designate another jurisdiction as a reciprocating jurisdiction if, in the opinion of the Lieutenant Governor in Council, it has similar law for the regulation of payday loans;

(b) authorize the minister, on behalf of the government, to enter into an agreement with the government of a reciprocating jurisdiction respecting the application, administration or enforcement of this Part or the law of that jurisdiction in respect of Internet payday loans;

(c) in accordance with any agreement made under clause (b), specify which law applies or does not apply when both this Part and the law of the reciprocating jurisdiction purport to apply to an Internet payday loan;

(d) extend, modify or limit the application of any provision of this Part in relation to an Internet payday loan.

S.M. 2006, c. 31, s. 3; S.M. 2009, c. 12, s. 9; S.M. 2013, c. 45, s. 19.

THE PUBLIC UTILITIES BOARD

"Board" defined

164(1)      In this section and sections 164.1 and 164.2, "board" means The Public Utilities Board.

Review within 3 years

164(2)      Within three years after the first regulation under clause 163(1)(f.1) (maximum cost of credit) comes into force, the board must commence a review of

(a) the meaning of "cost of credit" for the purposes of this Part;

(b) the maximum cost of credit — or any rate, tariff or formula for determining the maximum cost of credit — that may be charged, required or accepted in respect of a payday loan; and

(c) the maximum amounts, or the rates, tariffs or formulas for determining the maximum amounts, that may be charged, required or accepted

(i) in respect of any component of the cost of credit for a payday loan,

(ii) in respect of the extension or renewal of a payday loan,

(iii) in respect of a replacement loan, or

(iv) in respect of a default by the borrower under a payday loan.

Public consultation

164(3)      In the course of the review, the board must provide an opportunity for public consultation in order to obtain advice and recommendations from experts and persons or groups of persons affected by this Part.

Form of consultation

164(4)      The board may decide how to conduct the public consultation, which may include a public hearing, and may establish its own procedures for the consultation.

Rules of evidence

164(5)      If the board holds a hearing, it is not bound by the technical rules of legal evidence, but the board may allow or require evidence to be provided, and witnesses to be examined, under oath or affirmation.

Participant's costs

164(6)      On the application of a participant in the consultation, the board may require some or all of the participant's costs relating to the consultation to be reimbursed by the government.

Advisers to the board

164(7)      The board may appoint one or more experts, or persons having special knowledge about payday lending, to assist the board in the review.

Report to minister

164(8)      Within six months after commencing the review, or within any longer period allowed by the minister, the board must prepare and submit its report to the minister. The report

(a) must include

(i) a description of the board's consultation and the results of the consultation, and

(ii) the board's recommendations about the matters reviewed under subsection (2); and

(b) may include any other recommendations about the regulation of payday lenders or payday loans.

Board to publish its report

164(9)      After submitting the report to the minister, the board must publish it on the Internet.

Board's costs

164(10)     The board's costs of the review and the report, including the cost of any assistance obtained under subsection (7), and any costs payable by the government under subsection (6) are payable out of the Consolidated Fund with money authorized by an Act of the Legislature to be so paid and applied.

S.M. 2006, c. 31, s. 3; S.M. 2009, c. 12, s. 10.

Minister may seek advice

164.1(1)    The minister may at any time seek the advice and recommendations of the board with respect to any matter relating to the regulation of payday lenders or payday loans.

Further reviews

164.1(2)    Within three years after the board completes its latest review and report to the minister under section 164, and every third year after that, the minister must review the effectiveness of this Part and the regulations under this Part and decide

(a) whether to require a further review by the board in accordance with section 164; and

(b) whether to recommend changes to this Part or the regulations under this Part.

S.M. 2009, c. 12, s. 10.

Limited application of Public Utilities Board Act

164.2        The Public Utilities Board Act, other than sections 20 and 23, does not apply in respect of any review conducted by the board, or any advice or recommendations given by the board under this Part.

S.M. 2009, c. 12, s. 10.

PART XIX

GOVERNMENT CHEQUE CASHING FEES

Definitions

165         The following definitions apply in this Part.

"cheque cashing fee" means

(a) a fee, commission or other amount or consideration charged, paid or given for cashing or negotiating a government cheque; and

(b) any other fee, commission, amount or consideration designated by regulation as a cheque cashing fee. (« frais d'encaissement de chèque »)

"government agency" means a body designated as a government agency in the regulations. (« organisme gouvernemental »)

"government cheque" means a cheque or other written order to pay drawn on an account of

(a) the Government of Canada;

(b) the Government of Manitoba;

(c) a government agency; or

(d) a local government body. (« chèque du gouvernement »)

"local government body" means

(a) a municipality;

(b) a local government district;

(c) a community or incorporated community under The Northern Affairs Act; or

(d) a school division or school district established under The Public Schools Act;

designated as a local government body in the regulations. (« organisme d'administration locale »)

S.M. 2006, c. 17, s. 2.

Prohibition against unauthorized fees

166         No person shall

(a) charge, require or accept; or

(b) permit any other person to charge, require or accept;

a cheque cashing fee except as permitted by or under an order of The Public Utilities Board.

S.M. 2006, c. 17, s. 2.

Definition of "payer"

167(1)      In this section, "payer" means a person who pays or is charged or required to pay a cheque cashing fee.

Consequences of failure to comply

167(2)      If a person contravenes section 166,

(a) the payer is not liable to pay the cheque cashing fee or any part of it; and

(b) the person must, immediately on demand by the payer or the director, reimburse the payer, in cash for

(i) the total amount paid as a cheque cashing fee, and

(ii) the value of any other consideration given.

This is in addition to any penalty that the person may be subject to under any other provision of this Act or the regulations.

S.M. 2006, c. 17, s. 2.

Regulations

168(1)      The Lieutenant Governor in Council may make regulations

(a) designating a fee, commission or other amount or consideration as a cheque cashing fee for the purpose of this Part;

(b) designating a body as a government agency for the purpose of this Part;

(c) designating any of the following as a local government body for the purpose of this Part:

(i) a municipality,

(ii) a local government district,

(iii) a community or incorporated community under The Northern Affairs Act, or

(iv) a school division or school district established under The Public Schools Act;

(d) exempting any transaction or class of transactions or any person or class of persons from the application of this Part or a regulation under this Part;

(e) respecting any other matter the Lieutenant Governor considers necessary for the administration of this Part.

Application of regulation

168(2)      A regulation under this Part may be general or particular in its application and may apply to one or more classes of persons or things, and to the whole or any part of the province.

S.M. 2006, c. 17, s. 2.

"Board" defined

169(1)      In this section, "board" means The Public Utilities Board.

Board to set maximum amount of fee

169(2)      The board must, by order, fix the maximum amount, or establish a rate, formula or tariff for determining the maximum amount, that may be charged, required or accepted as a cheque cashing fee.

What the board may consider

169(3)      In making an order under this section, the board may consider

(a) the business operating requirements of persons who cash or negotiate cheques for a fee;

(b) the financial risks taken by persons who cash or negotiate government cheques for a fee;

(c) any other factors that the board considers relevant and in the public interest; and

(d) any data that the board considers relevant.

Order to be just and reasonable

169(4)      An order made under this section must be one that the board considers just and reasonable in the circumstances, having regard to the factors and data considered by it.

Periodic review

169(5)      The board must review its existing orders under this section at least once every three years. After the review, the board must make a new order that replaces the existing orders.

Review on changed circumstances

169(6)      Whenever the board is satisfied that circumstances with respect to the cashing or negotiating of government cheques have changed substantially, or that new evidence has come to its attention that may affect an existing order made under subsection (2), the board may review any existing order. After the review, the board must make a new order that continues, modifies or replaces the order that was reviewed.

Notice and hearing

169(7)      Before making an order under this section, the board must give public notice and hold a public hearing in respect of the subject matter of the order.

Board may determine status

169(8)      At a hearing under this section, the board may define the status and rights of any person wishing to make a submission or to provide or challenge evidence provided to the board. The board may refuse to admit evidence or receive a submission that, in the board's opinion, is not relevant to the subject matter of the hearing.

Costs of intervener payable by government

169(9)      The board may determine whether an intervener is entitled to costs for participating in a hearing under this section, and may fix the amount of those costs. Costs are payable out of the Consolidated Fund with money authorized by an Act of the Legislature to be so paid and applied.

169(10)     [Repealed] S.M. 2013, c. 39, Sch. A, s. 42.

Application of Public Utilities Board Act

169(11)     Part I of The Public Utilities Board Act applies, with necessary changes, to the making of an order under this section as if the powers and duties of the board under this section were assigned to the board under that Part, except for the following provisions:

(a) section 33 (power of board on complaints);

(b) section 34 (power to appoint counsel) as it relates to the fees and expenses of the person appointed;

(c) subsection 51(2) (time for service of order);

(d) section 52 (enforcement of order);

(e) section 56 (order as to costs) as it relates to the costs of an intervener;

(f) section 57 (fees).

S.M. 2006, c. 17, s. 2; S.M. 2013, c. 39, Sch. A, s. 42.

PART XX

PREPAID PURCHASE CARDS

Definition

170         In this Part, "prepaid purchase card" means, subject to the regulations, an electronic card, written certificate or other voucher or device with a monetary value, that is issued or sold in exchange for the future purchase or delivery of goods or services, and includes a gift card and gift certificate.

S.M. 2006, c. 27, s. 2.

No expiry date

171(1)      No person shall issue or sell a prepaid purchase card that has an expiry date, except as may be provided in the regulations.

Valid until redeemed or replaced

171(2)      A prepaid purchase card that is issued or sold without an expiry date is valid until fully redeemed or replaced.

S.M. 2006, c. 27, s. 2.

Information to be provided

172         A person who issues or sells a prepaid purchase card must provide information to the consumer as specified in the regulations.

S.M. 2006, c. 27, s. 2.

Regulations

173         The Lieutenant Governor in Council may make regulations respecting prepaid purchase cards, including, without limitation,

(a) extending or limiting the meaning of "prepaid purchase card" for the purpose of this Part;

(b) exempting classes of prepaid purchase cards and classes of persons who issue, sell or redeem prepaid purchase cards from the application of this Part or any provision of it;

(c) governing the use of expiry dates for prepaid purchase cards that are exempt from subsection 171(1);

(d) respecting the imposition of restrictions, prohibitions and other terms and conditions on the issuance, sale, redemption, replacement and use of prepaid purchase cards;

(e) respecting the information that must be provided in relation to prepaid purchase cards, and the form, timing and manner of providing that information;

(f) governing the fees, including inactivity fees or service fees, that may be charged in relation to prepaid purchase cards, including prescribing the amount of a fee or a method of determining the amount of a fee, and prescribing circumstances in which no fee is payable;

(g) defining any word or phrase used but not defined in this Part;

(h) respecting any matter that the Lieutenant Governor in Council considers necessary for the administration of this Part.

S.M. 2006, c. 27, s. 2.

PART XXI

NEGATIVE OPTION MARKETING

DEFINITIONS

Definitions

174(1)      The following definitions apply in this Part.

"negative option marketing" means, subject to subsection (2), a practice in which a supplier

(a) provides goods or services to a consumer — including an enhancement to a service that the consumer is already receiving — that the consumer did not request; and

(b) requires the consumer to pay for the goods or services unless the consumer informs the supplier that the consumer does not want them. (« commercialisation par abonnement par défaut »)

"supplier" means a person who, in the course of the person's business, provides goods or services to consumers. (« fournisseur »)

When negative option marketing does not occur

174(2)      Negative option marketing does not occur when

(a) goods or services are supplied to a consumer under a written contract that provides for periodic supply without further solicitation, but only if the contract sets out — prominently, and in a form and using language that is clear and understandable — that the goods or services will be supplied periodically without further solicitation;

(b) there is a change to periodically supplied goods or services, if the change is not a material change under section 178; or

(c) the consumer knows or ought to know that the goods or services were intended for delivery to someone else.

Request not inferred

174(3)      For the purpose of the definition "negative option marketing", a request to buy goods or services must not be inferred solely from the passage of time or from inaction on the consumer's part, or from the consumer's use of or payment for the goods or services.

S.M. 2010, c. 31, s. 5.

OBLIGATIONS AND RIGHTS

Negative option marketing prohibited

175         No supplier shall supply goods or services to a consumer using negative option marketing.

S.M. 2010, c. 31, s. 5.

No consumer liability

176(1)      A consumer is not liable to pay for any goods or services received under negative option marketing.

No consumer obligation re use, etc.

176(2)      A consumer has no legal obligation or liability respecting the use, loss or disposal of goods received under negative option marketing.

S.M. 2010, c. 31, s. 5.

Consumer's remedy: refund

177(1)      A consumer who pays for goods or services supplied using negative option marketing may demand a refund from the supplier within one year after making the payment, as long as the consumer did not expressly acknowledge to the supplier in writing his or her intention to accept the goods or services.

Supplier must refund

177(2)      A supplier who receives a demand for a refund under subsection (1) must make the refund within 30 days after receiving the demand.

S.M. 2010, c. 31, s. 5.

MATERIAL CHANGE IN PERIODIC SUPPLY OF GOODS OR SERVICES

Material change deemed negative option marketing

178(1)      If there is a material change in goods or services supplied to a consumer on a periodic basis, the goods or services are deemed to be supplied using negative option marketing from the time of the material change, unless the supplier can establish that the consumer expressly consented to the change.

Establishing consent

178(2)      A supplier may rely on a consumer's consent to a material change if it is made in a way that permits the supplier to produce evidence to establish the consent.

When consent not established

178(3)      A supplier does not establish a consumer's consent by giving the consumer a notice to the effect that the supplier will supply the materially changed goods or services unless the consumer instructs the supplier not to do so.

"Material change" described

178(4)      Subject to the regulations, a change or a series of changes is a material change under this section if it is of such a nature or quality that it could reasonably be expected to influence a reasonable person's decision as to whether to agree to the supply of the goods or services.

S.M. 2010, c. 31, s. 5.

APPLICATION OF THIS PART

Application of this Part

179         This Part applies to negative option marketing if

(a) the supplier or consumer is a resident of Manitoba; or

(b) the goods or services are received in Manitoba or supplied from Manitoba.

S.M. 2010, c. 31, s. 5.

PART XXII

CONTRACTS FOR CELL PHONE SERVICES

INTERPRETATION AND APPLICATION

Definitions

180         The following definitions apply in this Part.

"cancellation fee" means a cancellation fee referred to in clause 197(b). (« frais de résiliation »)

"cell phone services" means, subject to the regulations, wireless communication services or functions that are accessed from a cell phone, including, without limitation, receiving or transmitting telephone calls, electronic data, e-mail or text messages. (« services de téléphonie cellulaire »)

"contract", except where the context otherwise requires, means a contract to which this Part applies. (« contrat »)

"customer" means a person who enters into a contract with a supplier for cell phone services. (« client »)

"indeterminate contract" means a contract without a fixed term. (« contrat à durée indéterminée »)

"supplier" means a person who enters into a contract with a customer to provide cell phone services to the customer. (« fournisseur »)

S.M. 2011, c. 25, s. 2.

Application of this Part

181(1)      Subject to the regulations, this Part applies to every contract for cell phone services entered into on or after the day that this section came into force between a supplier and a customer primarily for personal, family or household purposes.

Application to existing contracts that are extended or renewed

181(2)      Subject to the regulations, this Part applies to a contract for cell phone services entered into before the day that this section came into force between a supplier and a customer primarily for personal, family or household purposes, but only if the contract is extended or renewed on or after the day that this section came into force.

Exception — prepaid cell phone services

181(3)      Despite subsections (1) and (2), this Part does not apply to a contract for prepaid cell phone services.

S.M. 2011, c. 25, s. 2.

Interpretation — amendment of a contract

182         For greater certainty, and for all purposes under this Part, the amendment of a term or provision of a contract

(a) does not constitute consent by either party to the contract to any other amendment of the contract;

(b) does not terminate the amended contract; and

(c) does not create a new contract.

S.M. 2011, c. 25, s. 2.

CONTRACT REQUIREMENTS

Contract must be in writing

183(1)      A contract must be in writing.

Copy of contract to be given to customer before contract is made

183(2)      A supplier must, before a contract is made and at no additional cost to a prospective customer,

(a) give copies of all documents that comprise the contract to the prospective customer; and

(b) give the prospective customer reasonable time to review the documents and ask questions before requesting that the customer sign the contract.

Copy of contract to be given to customer after contract is made

183(3)      A supplier must give to each customer, at no additional cost to the customer, copies of all documents that comprise the contract immediately after the contract is made.

Exception — contracts not made in person

183(4)      The requirements of subsections (1) to (3) do not apply to a contract that is not made in person.

S.M. 2011, c. 25, s. 2.

Definition of "minimum monthly cost"

184(1)      In this section and in sections 185 and 186, "minimum monthly cost" means the minimum amount that a customer will become liable to pay under the contract — including all fees, charges, penalties, interest and other amounts or consideration, but not including any municipal, provincial or federal government taxes, fees or levies — in a one-month period regardless of the customer's usage of the cell phone services available under the contract.

Minimum monthly cost to be expressed on a monthly basis

184(2)      The minimum monthly cost is to be expressed on a monthly basis, even if the costs under the contract are calculated on a basis other than a monthly basis, or the billing period is not a monthly period.

S.M. 2011, c. 25, s. 2.

Information to be set out clearly and prominently at the beginning of the contract

185(1)      A supplier must ensure that the following information is set out prominently and in a clear and understandable manner, satisfactory to the director, on the beginning page or pages of a contract:

(a) the supplier's business name, business and mailing addresses, telephone number, fax number, e-mail address and, if the supplier has a website, its website address;

(b) the customer's name and address;

(c) the date the contract was made, and where it was made;

(d) the term of the contract expressed in days, weeks, months or years, and its expiry date;

(e) the minimum monthly cost of the contract;

(f) an itemized list of all costs included in the minimum monthly cost;

(g) a description of the cell phone services provided for in the minimum monthly cost ("the base services") including, where applicable,

(i) a statement of the maximum usage of any of the base services before the customer will become liable for costs not included in the minimum monthly cost ("additional use charges"),

(ii) a description of any restrictions on the base services — including, without limitation, restrictions relating to time of day, day of week or geography — that will result in the customer becoming liable for costs not included in the minimum monthly cost, and

(iii) the manner in which the customer can obtain further details on the base services and their costs and restrictions;

(h) rates for any additional use charges referred to in subclause (g)(i) — which may include, without limitation, rates for additional minutes or additional data usage — and information on how the customer can obtain further details on these rates;

(i) a description of any cell phone services available under the contract that the customer may opt to use, but that are not included in the calculation of the minimum monthly cost ("optional services"), including, without limitation,

(i) an explanation as to how the cost of each optional service will be calculated,

(ii) a description of any restrictions on the optional services that will result in an increase in cost to the customer for the use of these services, and

(iii) the manner in which the customer can obtain further details on the optional services and their costs and restrictions;

(j) a description — including, without limitation, the amount or how the amount is calculated — of any one-time or irregularly occurring fees, charges, penalties, interest or other amounts or consideration payable by the customer under the contract, including, without limitation, system activation fees;

(k) a description of any temporarily reduced or waived charges for cell phone services, including, without limitation, a reduced rate or waiver of all charges for one or more cell phone services for an initial period;

(l) a description of any cell phone provided by the supplier to the customer for free or by sale to the customer — whether or not at a reduced cost — along with a statement as to

(i) whether the cell phone is new or reconditioned, and

(ii) whether the cell phone is locked;

(m) a description, consistent with sections 196 to 199 and the regulations, of

(i) how the customer may cancel the contract, and

(ii) how any cancellation fee will be calculated;

(n) if a cell phone was provided by the supplier to the customer for free or by sale at a reduced cost, a statement of the amount that will be used in calculating the cancellation fee, which must not exceed

(i) in the case of a free phone, the value of the phone, and

(ii) in the case of a phone sold at a reduced cost, the value of the phone less the amount that the customer paid for it;

(o) a description of any manufacturer's warranty or other warranty that automatically applies, at no additional cost, to a cell phone provided for free or by sale — whether or not at a reduced cost — to the customer, including

(i) what is covered under the manufacturer's warranty or other warranty or, if applicable, under each warranty,

(ii) the duration of the manufacturer's warranty or other warranty or, if applicable, the duration of each warranty, and

(iii) how the customer can make a claim under the manufacturer's warranty or other warranty or, if applicable, under each warranty;

(p) the manner in which the customer can contact the supplier for customer service;

(q) any other information as may be required by the regulations.

Minimum monthly cost, etc., must not reflect temporarily reduced amounts

185(2)      The minimum monthly cost, and any rates or costs stated in the contract under clauses (1)(h) and (i), must not reflect any temporarily reduced or waived rates or costs, including, without limitation, a reduced rate or a waiver of all costs for one or more cell phone services for an initial period.

S.M. 2011, c. 25, s. 2.

ADVERTISING IN RELATION TO CONTRACTS

Advertised price must include the minimum monthly cost

186(1)      The price advertised by a supplier for cell phone services under a contract must include the minimum monthly cost under the contract.

Advertisement must emphasize the minimum monthly cost

186(2)      An advertisement by a supplier must

(a) prominently disclose the minimum monthly cost; and

(b) place more emphasis on the minimum monthly cost than on the amounts that make up the minimum monthly cost.

S.M. 2011, c. 25, s. 2.

ADDITIONAL OR EXTENDED WARRANTIES — INFORMATION TO BE PROVIDED IN ADVANCE

Information supplier must provide before offering additional or extended warranty

187         Before offering to sell a customer an additional warranty or an extended warranty on a cell phone, the supplier must

(a) inform the customer orally of the existence of any manufacturer's warranty or other warranty that automatically applies, at no additional cost, to the cell phone, and explain

(i) what is covered under the manufacturer's warranty or other warranty or, if applicable, under each warranty,

(ii) the duration of the manufacturer's warranty or other warranty or, if applicable, the duration of each warranty, and

(iii) how the customer can make a claim under the manufacturer's warranty or other warranty or, if applicable, under each warranty; and

(b) at the customer's request, explain to the customer how to obtain details of the manufacturer's warranty or other warranty or, if applicable, details of each warranty.

S.M. 2011, c. 25, s. 2.

UNILATERAL AMENDMENT OF A CONTRACT

Definitions

188         The following definitions apply in this section and in sections 189 to 194.

"material term or provision", in relation to a contract, means, subject to the regulations, a term or provision that is required to be set out in the contract under clauses 185(1)(d) to (k). (« clause importante »)

"non-material term or provision", in relation to a contract, means a term or provision that is not a material term or provision. (« clause non importante »)

S.M. 2011, c. 25, s. 2.

Supplier cannot unilaterally amend a material term or provision of a contract

189         A term or provision of a contract that authorizes a supplier to unilaterally amend a material term or provision of the contract

(a) is prohibited; and

(b) any term or provision of a contract that purports to give the supplier authority to do so is void and of no effect.

S.M. 2011, c. 25, s. 2.

Limits on unilateral amendment of a non-material term or provision

190(1)      Unless it complies with the requirements of subsection (2), a term or provision of a contract that authorizes a supplier to unilaterally amend a non-material term or provision of the contract

(a) is prohibited; and

(b) any term or provision of a contract that purports to give the supplier authority to do so is void and of no effect.

Requirements — unilateral amendment of a non-material term or provision

190(2)      A term or provision of a contract that authorizes a supplier to unilaterally amend a non-material term or provision of the contract must provide that the supplier send to the customer, at least 30 days before the amendment comes into force, a written notice in a form satisfactory to the director, setting out

(a) the new term or provision, or the amended term or provision as it reads at present and how it will read as amended;

(b) the date the amendment will come into force; and

(c) that the customer may accept the amendment by taking no action in response to the notice.

Amendment is not negative option marketing

190(3)      The unilateral amendment of a contract under this section does not constitute negative option marketing as that term is defined in subsection 174(1).

S.M. 2011, c. 25, s. 2.

Customer may cancel contract without penalty if material term or provision unilaterally amended

191(1)      If a supplier unilaterally amends a material term or provision of a contract, or purports to do so,

(a) the amendment, or purported amendment, is void and of no effect;

(b) the customer may cancel the contract; and

(c) the supplier must not charge the customer a cancellation fee or any other charge, fee, penalty, interest or other amount or consideration — other than the cost of any unpaid cell phone services that have been provided to the customer calculated at the rate provided in the contract — as a result of the customer cancelling the contract.

Customer may cancel contract without penalty —

unilateral amendment of a non-material term or provision

191(2)      If a supplier unilaterally amends a non-material term or provision of a contract, or purports to do so, and

(a) the contract does not contain a term or provision that meets the requirements of subsection 190(2); or

(b) the notice requirements set out in clauses 190(2)(a) to (c) have not been met in respect of the amendment or purported amendment;

clauses (1)(a) to (c) apply.

S.M. 2011, c. 25, s. 2.

Exception — amendments required by law

192         Sections 189 to 191 do not apply to amendments that are required by any federal, provincial or municipal law or by an order of a court, board or tribunal.

S.M. 2011, c. 25, s. 2.

Exception — indeterminate contracts

193(1)      Sections 189 to 191 do not apply to amendments made to an indeterminate contract.

Requirements for indeterminate contracts

193(2)      Despite subsection (1),

(a) the requirements of subsection 190(2) apply, with the necessary modifications, to the unilateral amendment of an indeterminate contract; and

(b) clauses 191(1)(a) to (c) apply to the unilateral amendment, or purported unilateral amendment, of an indeterminate contract that does not meet the notice requirements set out in clauses 190(2)(a) to (c).

Subsection applies to both material and non-material amendments of an indeterminate contract

193(3)      For greater certainty, subsection (2) applies to any unilateral amendment of an indeterminate contract, without regard to whether the amendment is of a material term or provision or of a non-material term or provision.

S.M. 2011, c. 25, s. 2.

Exception — contract authorizes unilateral amendment that benefits customer, etc.

194(1)      Sections 189 and 190 do not apply to a term or provision of a contract that authorizes a supplier to unilaterally amend

(a) a material term or provision of the contract where the amendment will benefit the customer and will not increase the customer's obligations under the contract; or

(b) a non-material term or provision of the contract where the amendment will not increase the customer's obligations or decrease the supplier's obligations under the contract.

Exception — unilateral amendment that benefits customer, etc.

194(2)      Section 191 and subsections 193(2) and (3) do not apply to

(a) a unilateral amendment of a material term or provision of a contract where the amendment benefits the customer and does not increase the customer's obligations under the contract; or

(b) a unilateral amendment of a non-material term or provision of the contract where the amendment does not increase the customer's obligations or decrease the supplier's obligations under the contract.

Notice to customer of amendment

194(3)      Within 30 days after making a unilateral amendment described in subsection (2), the supplier must give notice of the amendment to the customer.

S.M. 2011, c. 25, s. 2.

Acceptance of amendment is not consent to other changes

195         For greater certainty, if a customer accepts an amendment under clause 190(2)(c), that acceptance does not constitute consent by the customer

(a) to any other amendment of the contract;

(b) to renew or extend the contract; or

(c) to enter into a new contract.

S.M. 2011, c. 25, s. 2.

CANCELLATION OF CONTRACT BY CUSTOMER

Customer may cancel contract at any time

196(1)      A customer may, at any time, cancel a contract by giving notice to that effect to the supplier. The cancellation takes effect on the day that the notice is given, or on a later date that may be specified in the notice.

Cancellation rights in addition to other rights

196(2)      The cancellation rights under this section are in addition to, and do not affect, any other right or remedy that the customer has under the contract or at law.

S.M. 2011, c. 25, s. 2.

Limits on charges when customer cancels contract

197         Upon the cancellation of a contract under subsection 196(1), the supplier must not charge the customer any fee, charge, penalty, interest or other amount or consideration, other than

(a) the cost of any unpaid cell phone services that have been provided to the customer calculated at the rate provided in the contract; and

(b) any cancellation fee that may be authorized under section 198 or 199 or by a regulation made under clause 211(1)(i).

S.M. 2011, c. 25, s. 2.

Cancellation fees for contracts with a fixed term

198(1)      Subject to the regulations, this section applies to the cancellation of a contract with a fixed term.

Fixed term contract — cell phone provided

198(2)      If

(a) a cell phone was provided by the supplier to the customer for free or by sale at a reduced cost; and

(b) an amount was stated in the contract under clause 185(1)(n) for the purpose of calculating the cancellation fee;

the supplier may charge a cancellation fee of not greater than the amount stated in the contract under clause 185(1)(n), prorated by the length of time remaining in the contract's term.

Fixed term contract — no cell phone provided

198(3)       If a cell phone was not provided by the supplier to the customer for free or by sale at a reduced cost, or if subsection (2) does not apply for any other reason, the supplier may charge a cancellation fee not to exceed the lesser of

(a) $50; and

(b) the amount determined by the following formula:

Amount = 10% × M × N

In this formula,

M

is the minimum monthly cost, as defined in subsection 184(1);

N

is the length of the remaining term of the contract, expressed in months.

S.M. 2011, c. 25, s. 2.

Cancellation fees for indeterminate contracts

199(1)      Subject to the regulations, this section applies to the cancellation of an indeterminate contract.

Indeterminate contract — cell phone provided

199(2)      If

(a) a cell phone was provided by the supplier to the customer for free or by sale at a reduced cost; and

(b) an amount was stated in the contract under clause 185(1)(n) for the purpose of calculating the cancellation fee;

the supplier may charge a cancellation fee of not greater than the amount stated in the contract under clause 185(1)(n), less the amount calculated in accordance with the regulations.

Indeterminate contract — no cell phone provided

199(3)      For greater certainty, if a cell phone was not provided by the supplier to the customer for free or by sale at a reduced cost, or if subsection (2) does not apply for any other reason, the supplier must not charge a cancellation fee.

S.M. 2011, c. 25, s. 2.

CONTRACT EXPIRY AND EXTENSION

Customer to be notified contract expiry date is near

200(1)      The supplier must, between 60 and 90 days before the expiry date of a contract, give a written notice to the customer, in a form satisfactory to the director, setting out

(a) the date that the contract is set to expire, and that this notice is written notice that the contract will terminate on that date; or

(b) the date that the contract is set to expire, but that it will be automatically extended, on a monthly basis — on the same terms as at present — until either the customer or the supplier gives notice to the other that the contract is not to be further extended.

Exceptions

200(2)      Subsection (1) does not apply to

(a) a contract with a term of less than 60 days; or

(b) an indeterminate contract.

S.M. 2011, c. 25, s. 2.

Automatic monthly extensions

201(1)      On the expiry date of a contract,

(a) if a notice has been given to the customer under clause 200(1)(b); and

(b) if neither the supplier nor the customer has given notice to the other that the contract is not to be extended;

the contract is automatically extended — on the same terms — for an additional one-month term. In such a case, the supplier must continue to automatically extend the contract, for additional one-month terms, until either the supplier or the customer gives notice to the other that the contract is not to be further extended.

All fees, charges, etc. prohibited

201(2)      No supplier shall charge a customer a contract extension fee or any other fee, charge, penalty, interest or other amount or consideration for a contract extension under this section.

Contract extension is not negative option marketing

201(3)      The extension of a contract under this section does not constitute negative option marketing as that term is defined in subsection 174(1).

S.M. 2011, c. 25, s. 2.

SECURITY DEPOSITS

Contract not to be cancelled if security deposit exceeds amount of debt

202(1)      If a customer has paid a security deposit, the supplier must not cancel the contract for failure to pay outstanding amounts under the contract when they become due for as long as the amounts due do not exceed the amount of the deposit.

Supplier to notify customer on using security deposit

202(2)      A supplier must notify the customer in writing when it uses all or part of the security deposit to satisfy amounts not paid when they became due.

S.M. 2011, c. 25, s. 2.

Return of security deposit

203         A supplier must return to the customer any security deposit paid by the customer — minus any amounts used to pay outstanding amounts due under the contract — with interest at the prescribed rate, within 30 days after the day on which the contract expires if it is not renewed or extended or the day on which the contract is cancelled.

S.M. 2011, c. 25, s. 2.

EQUIPMENT REPAIRS

No payment for services not received due to equipment repair

204(1)      No supplier shall demand, request or accept payment for cell phone services of which the customer was deprived during the repair of equipment or other goods supplied free of charge, sold, or rented to the customer on the making of the contract or during the term of the contract, if

(a) the goods were given to the supplier for repair while still under warranty and the supplier did not provide a replacement free of charge; and

(b) the goods are necessary for the use of cell phone services provided for under the contract.

Exception if damage caused by customer

204(2)      Subsection (1) does not apply if the damage to the equipment or other goods under repair was caused by the customer.

S.M. 2011, c. 25, s. 2.

PAPER BILLS

Paper bills at customer's request

205         A supplier must, at the customer's request and subject to the regulations, provide bills in paper form to the customer.

S.M. 2011, c. 25, s. 2.

RECORDS

Records to be kept

206         A supplier must, in accordance with the regulations, make and maintain records of all contracts into which it enters.

S.M. 2011, c. 25, s. 2.

207         [Repealed]

S.M. 2011, c. 25, s. 2; S.M. 2013, c. 45, s. 20.

OTHER MATTERS

Information must be clear, understandable and prominently displayed

208(1)      Information that a supplier is required to include in a notice or other document under this Part or the regulations must be clear and understandable, and the required information must be prominently displayed.

Interpretation of ambiguous statement

208(2)      If a term, provision or statement in a notice or other document provided to a customer under this Part or the regulations is ambiguous, it must be construed in favour of the customer.

S.M. 2011, c. 25, s. 2.

Attempt to affect jurisdiction void and of no effect

209         Any term or provision of a contract purporting to restrict the application of the law of Manitoba or to restrict jurisdiction or venue to a forum outside Manitoba is void and of no effect.

S.M. 2011, c. 25, s. 2.

GUIDELINES, REGULATIONS AND REVIEW

Guidelines for contracts and other documents

210         To assist in the preparation of contracts, notices and other documents that are clear and understandable, the director may issue guidelines about the form or content of such documents.

S.M. 2011, c. 25, s. 2.

Regulations

211(1)      The Lieutenant Governor in Council may make regulations

(a) exempting any contract or class of contracts or any person or class of persons from the application of this Part or any provision of this Part;

(b) extending, modifying or limiting the meaning of "cell phone services" for the purposes of this Part or any provision of this Part;

(c) extending, modifying or limiting the application of any provision of this Part in relation to indeterminate contracts;

(d) respecting the manner of giving, sending or serving any notice or other document that is required to be given, sent or served;

(e) respecting requirements for contracts not made in person, including, without limitation,

(i) whether the contract must be in writing,

(ii) documents or information that must be given or made available to the prospective customer before the contract is made, and

(iii) documents or information that must be given or made available to the customer after the contract is made;

(f) respecting methods for determining the maximum amount that may be stated in a contract under clause 185(1)(n), and setting the maximum amount;

(g) for the purpose of clause 185(1)(q), specifying other information required to be set out prominently and in a clear and understandable manner, satisfactory to the director, on the beginning page or pages of a contract;

(h) for the purpose of the definition "material term or provision" in section 188,

(i) extending, modifying or limiting the meaning of that term for the purposes of this Part or any provision of this Part, or

(ii) specifying other classes of terms or provisions that are material terms or provisions;

(i) for the purpose of section 197, authorizing other cancellation fees, and respecting circumstances in which such fees apply and methods of calculating them;

(j) for the purpose of subsection 198(2), respecting the determination of the maximum amount of the cancellation fee, including, without limitation, the method of determining the prorated value of a cell phone;

(k) for the purpose of subsection 199(2), specifying how to calculate the amount that is to be subtracted from the amount stated in the contract under clause 185(1)(n);

(l) for the purpose of subsection 201(1), respecting the manner of giving notice that the contract is not to be extended or further extended, which may include oral notice and, when notice is provided by the customer, how it must be acknowledged by the supplier;

(m) for the purpose of section 203, prescribing the rate of interest, or the method of determining the rate of interest, payable on the return of a security deposit;

(n) respecting the providing of bills in paper form to a customer, including prescribing the maximum amount that a supplier can charge a customer for a paper bill;

(o) for the purpose of section 206, respecting records of contracts to be made and maintained by a supplier, including the length of time for which and the location at which records must be retained;

(p) respecting Internet cell phone contracts;

(q) respecting cell phone contracts made, in whole or in part, by telephone, including, without limitation, contracts made by a combination of telephone and Internet communications;

(r) respecting the form of a contract or of any document or information required or provided for under this Part, which may include, without limitation, requiring specified fonts or font sizes;

(s) without limiting clause 97(1)(ff), defining any word or phrase used but not defined in this Part, including "cell phone" and "prepaid cell phone services";

(t) respecting any other matter the Lieutenant Governor in Council considers necessary or advisable for the administration of this Part.

Regulations about Internet cell phone contracts

211(2)      Without limiting clause (1)(p), a regulation made under that clause may do one or more of the following:

(a) define the term "Internet cell phone contract";

(b) designate another jurisdiction as a reciprocating jurisdiction if, in the opinion of the Lieutenant Governor in Council, it has similar law for the regulation of Internet cell phone contracts;

(c) authorize the minister, on behalf of the government, to enter into an agreement with the government of a reciprocating jurisdiction designated under clause (b) respecting the application, administration or enforcement of this Part or the law of that jurisdiction in respect of Internet cell phone contracts;

(d) in accordance with any agreement made under clause (c), specify which law applies or does not apply when both this Part and the law of the reciprocating jurisdiction purport to apply to an Internet cell phone contract;

(e) extend, modify or limit the application of any provision of this Part in relation to Internet cell phone contracts.

Scope and application of regulation

211(3)      A regulation under subsection (1) or (2)

(a) may be general or particular in its application; and

(b) may establish one or more classes of contracts, suppliers or customers and may apply differently to different classes.

S.M. 2011, c. 25, s. 2.

PART XXIII

MOTOR VEHICLE WORK AND REPAIRS

Definitions

212         The following definitions apply in this Part.

"estimate" means an estimate of the total cost of the work to be performed on and repairs to be done to the motor vehicle being repaired. (« devis »)

"motor vehicle" means a motor vehicle as defined in The Highway Traffic Act that is registered or may be registered as a motor vehicle under The Drivers and Vehicles Act. (« véhicule automobile »)

"repairer" means a person who performs work on or repairs motor vehicles, at a charge or price or for consideration, in the ordinary course of business. (« réparateur »)

S.M. 2012, c. 14, s. 2.

Non-application

213(1)      This Part does not apply to work performed on or repairs done to an insured vehicle in respect of a claim that is made by an insured under The Manitoba Public Insurance Corporation Act and for which coverage is provided under that Act.

Same meaning

213(2)      In this section, "insured" and "insured vehicle" have the same meaning as in section 48 of the Automobile Insurance Coverage Regulation, Manitoba Regulation 290/88 R.

S.M. 2012, c. 14, s. 2.

Estimate

214(1)      No repairer shall charge a consumer for any work performed on or repairs done to a motor vehicle unless the repairer first gives the consumer an estimate that meets the prescribed requirements.

Exception

214(2)      Despite subsection (1), a repairer may charge a consumer for work or repairs without giving an estimate if each of the following conditions is met:

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

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

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

Application

214(3)      This section applies if the total cost charged for the work or repairs is more than the amount prescribed by regulation.

S.M. 2012, c. 14, s. 2.

Fee may be charged for preparing estimate

215(1)      No repairer shall charge a fee for an estimate unless the consumer is informed in advance that a fee will be charged and the amount of the fee.

Items included in fee

215(2)      Subject to the regulations, a fee for an estimate is deemed to include the cost of

(a) diagnostic time;

(b) re-assembling the motor vehicle; and

(c) parts that will be damaged and must be replaced when re-assembling;

if the work or repairs are not authorized by the consumer.

S.M. 2012, c. 14, s. 2.

Authorization required

216         No repairer shall charge for any work or repairs unless the consumer authorizes the work or repairs.

S.M. 2012, c. 14, s. 2.

Exceeding estimate restricted

217(1)      In respect of work or repairs for which an estimate was given, no repairer shall charge the consumer an amount that exceeds the total of the estimate and the prescribed percentage of the estimate or amount determined in the prescribed manner.

Consequence of failure to comply

217(2)      If a repairer contravenes subsection (1),

(a) the consumer is not liable for the excess; and

(b) the repairer must reimburse the consumer immediately upon demand by the consumer or director for that amount if the consumer has paid it.

This is in addition to any penalty that the repairer may be subject to under any other provision of this Act.

S.M. 2012, c. 14, s. 2.

Authorization not in writing

218(1)      If an authorization required by section 214 or 216 is not given in writing, the authorization is not effective unless it is recorded in a manner that meets the prescribed requirements and contains the prescribed information.

Additional work or repairs require estimate and authorization

218(2)      To avoid doubt, if, while performing work on or doing repairs to a motor vehicle, the need for work or repairs that are new or substantially different from the work or repairs that are covered by the estimate is identified by the repairer, the repairer must not charge for the additional work or repairs without first complying with subsection (1) and sections 214 to 217.

S.M. 2012, c. 14, s. 2.

Posting signs

219         A repairer must post the prescribed signs in accordance with the prescribed requirements.

S.M. 2012, c. 14, s. 2.

Return of parts

220(1)      A repairer must offer to return to the consumer all parts removed in the course of work or repairs and must return all such parts unless advised when the work or repairs are authorized that the consumer does not require their return.

Parts kept separate

220(2)      A repairer must

(a) keep parts removed from the motor vehicle being repaired separate from any other motor vehicles being repaired; and

(b) return the parts in a clean container if their return is required under subsection (1).

Exception

220(3)      Subsections (1) and (2) do not apply to the following:

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

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

(c) parts exchanged for a retooled or reconditioned part used in the work performed on or repairs done to the motor vehicle.

S.M. 2012, c. 14, s. 2.

Invoice

221         On completion of the work or repairs, a repairer must give by a prescribed manner to the consumer an invoice containing the prescribed information.

S.M. 2012, c. 14, s. 2.

Warranty

222(1)      On the repair of a motor vehicle, a repairer is deemed to warrant all new or reconditioned parts installed and the labour required to install them.

Term of warranty

222(2)      Unless another term is prescribed by regulation, the term of the warranty is 90 days or 5,000 kilometres, whichever comes first.

Calculating time period

222(3)      For the purpose of subsection (2), the warranty begins on the date of delivery of the repaired motor vehicle to the consumer.

Loss of warranty

222(4)      The warranty does not cover damage resulting from misuse or abuse by the consumer with respect to the motor vehicle part.

Repairer and subcontractor jointly and severally liable under warranty

222(5)      If a repairer uses a subcontractor, the repairer and the subcontractor are jointly and severally liable with respect to the warranty. The repairer must notify the consumer that it has used a subcontractor and provide the consumer with information about how to contact the subcontractor about the warranty.

Additional warranty

222(6)      The warranty is in addition to the implied and deemed conditions and warranties set out in sections 58, 58.1 and 58.2.

S.M. 2012, c. 14, s. 2.

Records to be kept

223         A repairer must make and maintain records, including records of all estimates given and authorizations received, in accordance with the regulations.

S.M. 2012, c. 14, s. 2.

224 to 227  [Repealed]

S.M. 2012, c. 14, s. 2; S.M. 2013, c. 45, s. 21.

Regulations

228(1)      The Lieutenant Governor in Council may make regulations

(a) defining "total cost" for the purpose of this Part and the regulations;

(b) for the purpose of clause 214(2)(a), prescribing the manner in which a consumer may decline the offer of an estimate;

(c) respecting a fee for an estimate that may be charged under section 215;

(d) defining "date of delivery" for the purpose of section 222;

(e) respecting recordkeeping;

(f) prescribing anything referred to in this Part as being prescribed;

(g) exempting repairers or classes of repairers, repairs or classes of repairs, parts or classes of parts, or motor vehicles or classes of motor vehicles from the application of this Part or any provision of this Part or the regulations;

(h) extending the application of this Part to other prescribed goods and services in relation to a motor vehicle;

(i) respecting any matter the Lieutenant Governor in Council considers necessary or advisable for the administration of this Part.

Scope and application of regulations

228(2)      A regulation under subsection (1)

(a) may be general or particular in its application; and

(b) may establish classes of repairers, repairs, parts or motor vehicles and may apply differently to different classes.

S.M. 2012, c. 14, s. 2.

 

 


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