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The Farm Machinery and Equipment Act
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This version is current as of June 22, 2017.
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C.C.S.M. c. F40

The Farm Machinery and Equipment Act

(Assented to June 29, 1998)

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

INTERPRETATION AND APPLICATION

Definitions

1(1)        In this Act,

"attachment" means anything that is specifically approved by the manufacturer of farm machinery or farm equipment to be attached to the machinery or equipment in order to modify it; (« instrument »)

"board" means the Manitoba Farm Industry Board established by subsection 3(1) of The Family Farm Protection Act; (« Commission »)

"custom operator" means a purchaser of farm machinery or farm equipment who uses it

(a) for hire, or

(b) for service to others for a fee, charge or other valuable consideration,

to the extent of 50% or more of its annual use; (« exploitant à façon »)

"dealer" means a person, corporation or partnership carrying on a retail business in which the person, corporation or partnership

(a) sells or leases to purchasers, with or without the right to purchase, new farm machinery or farm equipment,

(b) sells repair parts for the machinery or equipment, and

(c) operates a maintenance and repair service shop for the machinery or equipment; (« concessionnaire »)

"dealership agreement" means a written or oral dealership agreement between a dealer and a vendor; (« contrat de concession »)

"farm equipment" means equipment that is used or intended for use in farming operations, including any combine, tractor, implement, engine, motor or attachment, but not including a motor vehicle within the meaning of The Highway Traffic Act, an off-road vehicle with the meaning of The Off-Road Vehicles Act or any equipment designated in the regulations; (« matériel agricole »)

"farm machinery" means machinery that is used or intended for use in farming operations, including any combine, tractor, implement, engine, motor or attachment, but not including a motor vehicle within the meaning of The Highway Traffic Act, an off-road vehicle with the meaning of The Off-Road Vehicles Act or any equipment designated in the regulations; (« machine agricole »)

"financial institution" means

(a) a bank,

(b) a body corporate to which the Trust and Loan Companies Act (Canada) applies,

(c) an association to which the Cooperative Credit Associations Act (Canada) applies,

(d) an insurance company or fraternal benefit society to which the Insurance Companies Act (Canada) applies,

(e) a trust, loan or insurance corporation incorporated by or under an Act of the Legislature of Manitoba or an Act of the legislature of another province,

(f) a credit union or caisse populaire to which The Credit Unions and Caisses Populaires Act applies,

(g) a cooperative credit association incorporated by or under an Act of the legislature of another province,

(h) a foreign institution that would come within the provisions of any of clauses (a) to (g) if it had been incorporated or formed in Canada; (« établissement financier »)

"financial lease", in relation to farm machinery or farm equipment, means a lease or lease-purchase between a financial institution or financial leasing corporation and a purchaser that, after allowing for the rate of return to the financial institution or financial leasing corporation agreed to by the purchaser, is intended to recoup to the financial institution or financial leasing corporation its entire investment in the machinery or equipment, taking into consideration the value of any tax benefits accruing to the financial institution or financial leasing corporation on account of the lease or lease-purchase, including tax credits and capital cost allowance claims; (« crédit-bail »)

"financial leasing corporation" means a body corporate

(a) the activities of which are limited to the financial leasing of personal property and incidental activities, and

(b) that, in conducting the activities referred to clause (a), does not direct its customers to particular dealers in the leased property or the property to be leased; (« personne morale de crédit-bail »)

"Fund" means The Farm Machinery and Equipment Act Fund continued under subsection 55(1) of this Act; (« Fonds »)

"intended purpose", in relation to farm machinery or farm equipment, means a purpose for which the purchaser intends to use the equipment, set out in a sale, lease or lease-purchase contract as provided for in subsection 24(1); (« fonction prévue »)

"lease" means a lease of farm machinery or farm equipment under which the lessee is not given the right to purchase the farm machinery or farm equipment; (« bail »)

"lease-purchase" means a lease of farm machinery or farm equipment under which the lessee is given the right to purchase the farm machinery or farm equipment; (« bail avec option d'achat »)

"lien" means a lien, in accordance with subsection 35(2), provided for in a lien note set out in a sale contract or agreement of purchase and sale between a dealer and a purchaser; (« privilège »)

"lien note" means a lien note, in accordance with subsection 35(2), set out in a sale contract or agreement of purchase and sale between a dealer and a purchaser by virtue of which a lien is created in favour of the dealer against the farm machinery or farm equipment that is the subject of the sale contract or agreement of purchase and sale as security for the payment of the unpaid balance of the purchase price for the machinery or equipment; (« billet portant privilège »)

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

"repair part" means a part used or to be used in the repair of farm machinery or farm equipment; (« pièce de rechange »)

"season of use" means the designated season of use of a particular type of farm machinery or farm equipment as set out in the regulations; (« saison d'utilisation »)

"vendor" means

(a) a manufacturer of farm machinery or farm equipment or repair parts who

(i) sells, consigns or delivers farm machinery or farm equipment or repair parts to a dealer for resale by the dealer, or to a distributor or supplier for resale by a dealer, or

(ii) leases or delivers farm machinery or farm equipment to a dealer for the purpose of being relet by the dealer, or

(b) a distributor or supplier of farm machinery or farm equipment or repair parts who

(i) sells, consigns or delivers farm machinery or farm equipment or repair parts to a dealer for resale by the dealer, or

(ii) leases or delivers farm machinery or farm equipment to a dealer for the purpose of being relet by the dealer; (« vendeur »)

"working day" means a day other than Saturday, Sunday or a holiday. (« jour ouvrable »)

Meaning of "purchaser"

1(2)        In this Act, "purchaser" means a farmer who resides in Manitoba and

(a) who

(i) purchases, or

(ii) leases, with or without the right to purchase,

farm machinery or farm equipment from a dealer in Manitoba for the farmer's own use; or

(b) who leases farm machinery or farm equipment from a financial institution or financial leasing corporation in Manitoba for his or her own use under a financial lease, if the financial institution or financial leasing corporation obtains the farm machinery or farm equipment from a dealer in Manitoba at the request of the farmer.

S.M. 2000, c. 22, s. 2; S.M. 2002, c. 47, s. 24; S.M. 2013, c. 48, s. 7.

Application of Act

2(1)        Except as otherwise provided in this Act, this Act applies

(a) to all sales of new farm machinery or farm equipment by dealers in Manitoba to purchasers; and

(b) to all leases and lease-purchases of new farm machinery or farm equipment by purchasers from dealers in Manitoba.

Financial lease of farm machinery or equipment

2(1.1)      When a financial institution or financial leasing corporation in Manitoba acquires farm machinery or farm equipment from a dealer in Manitoba at the request of a farmer who resides in Manitoba and leases the equipment to the farmer under a financial lease, the farmer is deemed to have leased the farm machinery or farm equipment from the dealer. In that case, this Act applies in respect of that machinery or equipment to the same extent as if the farmer had leased the machinery or equipment from the dealer under a lease or lease-purchase contract with the dealer.

Notice to dealer

2(1.2)      At the time the financial institution or financial leasing corporation obtains the farm machinery or farm equipment from the dealer, it must inform the dealer of the name and address of the farmer who is leasing the machinery or equipment.

Non-application of Act

2(2)        This Act does not apply to a sale of farm machinery or farm equipment

(a) by a farmer

(i) by auction, or

(ii) in the ordinary course of his or her farming operation;

(b) by an executor or administrator of an estate; or

(c) by a vendor to a dealer, except as provided in sections 44 to 52.

Application of Act to trustees and others

2(3)        This Act, except sections 1, 3 to 7 and 35 to 42, does not apply to a sale of farm machinery or farm equipment

(a) by a public official, trustee in bankruptcy or receiver acting under court order or other judicial process;

(b) by a receiver appointed under a security agreement within the meaning of The Personal Property Security Act where the machinery or equipment is part of the collateral under the agreement; or

(c) where the machinery or equipment is subject to a lien under section 35, by the lienholder or the lienholder's agent.

Application of Act to used farm machinery or farm equipment

2(4)        This Act, except sections 1, 3 to 7 and 35 to 43, does not apply to a sale by a dealer of second-hand or used farm machinery or farm equipment.

S.M. 2000, c. 22, s. 3.

POWERS AND DUTIES OF THE BOARD

3           [Repealed]

S.M. 2013, c. 48, s. 7.

Powers and duties of board

4(1)        The board, in addition to any other powers conferred or duties imposed upon it under this Act,

(a) shall administer and enforce this Act and the regulations;

(b) shall receive and investigate complaints made to it under this Act;

(c) may inquire into and investigate any matter without a complaint, where the board has reasonable and probable grounds to believe that a person has contravened, is contravening or is about to contravene this Act or the regulations;

(d) may inquire into and attempt to resolve any dispute between a purchaser and a dealer or vendor with respect to any obligation imposed on the dealer or vendor under this Act or the regulations;

(e) may determine its own practice and procedure but shall give persons who come before it full opportunity to present information and make representations;

(f) may, in connection with any matter coming before it, extend the time prescribed in this Act or the regulations for doing a thing or giving a notice, before or after the expiration of the prescribed time;

(g) may, on the request of a purchaser, dealer or vendor who is affected by an order, decision or determination of the board, rehear an application, a complaint, or a dispute or matter referred to it, or reconsider the order, decision or determination;

(h) shall endeavour to inform farmers, dealers and vendors about

(i) the provisions of, and

(ii) their rights and duties under,

this Act and the regulations;

(i) shall maintain a public record of

(i) decisions and orders made by the board, and

(ii) enforcement proceedings taken,

under this Act or the regulations;

(j) shall approve normal rental rates for farm machinery or farm equipment where required under this Act;

(k) may approve forms for use under this Act;

(l) may make recommendations to the minister with respect to safety requirements of farm machinery or farm equipment; and

(m) shall do such other things as it may be required to do by the Lieutenant Governor in Council, consistent with the intention of this Act.

Investigation and recommendations

4(2)        Where the board receives a complaint under this Act, it shall investigate the complaint as expeditiously as possible and submit its findings and recommendations to the parties concerned.

Application of Family Farm Protection Act

4(3)        When performing a duty or function or exercising a power under this Act, the board has the same powers as it has in its role under The Family Farm Protection Act.

S.M. 2013, c. 48, s. 7.

Board's investigatory powers

5(1)        For the purpose of an investigation under clauses 4(1)(b) and (c), the board may investigate, inquire into and examine

(a) the business affairs of a person in respect of whom an investigation is being conducted;

(b) any books, papers, documents, correspondence, communications, records, negotiations, transactions or payments to, by, on behalf of, in relation to or in connection with a person referred to in clause (a); or

(c) any property, assets or things owned, acquired or disposed of, in whole or in part, by a person referred in clause (a) or by any person acting on behalf of or as agent for the person.

Duty to cooperate

5(2)        A person being investigated in accordance with subsection (1) shall make prompt and explicit answers to all inquiries with respect to the investigation from the person making the investigation.

Duty to provide information

5(3)        A dealer or vendor shall provide to the board on request a copy of a dealership agreement and any additional information that the board considers appropriate.

6           [Repealed]

S.M. 2013, c. 48, s. 7.

Protection from liability

7           No action or proceeding may be brought against the board, a member or employee of the board or any other person acting under the authority of this Act for anything done or omitted to be done, in good faith, in the exercise or performance, or intended exercise or performance, of a power, function or duty under this Act or a regulation made under this Act.

S.M. 2013, c. 48, s. 7.

LICENSING AND OTHER REQUIREMENTS OF VENDORS AND DEALERS

Dealer licence required

8(1)        No person shall

(a) carry on business in Manitoba as a dealer;

(b) sell new farm machinery or farm equipment to a purchaser; or

(c) not yet proclaimed;

unless he or she is the holder of a dealer licence issued to him or her by the board.

Vendor licence required

8(2)        No person shall carry on business in Manitoba as a vendor or sell, consign, lease or deliver farm machinery or farm equipment to a dealer in Manitoba unless he or she is the holder of a vendor licence issued to him or her by the board.

Exception for financial institutions, etc.

8(3)        Clause (1)(c) does not apply to a financial institution or financial leasing corporation that leases farm machinery or farm equipment to a purchaser under a financial lease.

S.M. 2000, c. 22, s. 4.

Application for a licence

9(1)        An application for a dealer or vendor licence shall

(a) be made to the board on a form approved by it; and

(b) contain the information and be accompanied by the documentation and fee required by the regulations.

Licence application fee non-refundable

9(2)        The fee referred to in clause (1)(b) is non-refundable.

Board may issue or refuse to issue licence

10(1)       Subject to subsection (3), the board may issue a licence, or may refuse to issue a licence where

(a) having regard to financial stability, the applicant or the applicant's officers or directors cannot reasonably be expected to be financially responsible in the conduct of the applicant's business;

(b) the past conduct of the applicant or the applicant's officers or directors affords reasonable grounds for believing that applicant will not carry on business in accordance with the law and with integrity and honesty; or

(c) for any reason relating to the applicant or the applicant's officers or directors, the board is not satisfied that the applicant is suitable for licensing.

Terms and conditions

10(2)       The board may issue a licence subject to any terms and conditions it considers appropriate.

Coverage under Fund required for licence

10(3)       The board shall not issue a licence unless the applicant purchases annual coverage under the Fund in accordance with the regulations.

Conditions to which all licences are subject

11          A licence issued under this Act

(a) is valid for the period set out in the regulations;

(b) is not transferable or assignable;

(c) when cancelled or terminated for any reason, shall be returned to the board by the licence holder; and

(d) shall be displayed at the licence holder's place of business in a conspicuous place that is readily observable by the public.

Renewal of dealer or vendor licence

12          Sections 9 and 10 apply with necessary modifications to an application to renew a dealer or vendor licence.

Failure to renew licence

13          Where a dealer or vendor fails to renew his or her licence in accordance with the regulations, the board shall notify the dealer or vendor that his or her licence is terminated.

Notice of intent to suspend or cancel licence

14(1)       Where the board has reason to believe that a licence holder has contravened or is contravening this Act or the regulations, the board shall send the licence holder, by facsimile transmission or registered mail, a written notice of its intent to suspend or cancel the licence, together with written reasons for the proposed suspension or cancellation.

Dispute of notice to suspend or cancel licence

14(2)       A licence holder who receives a notice under subsection (1) may, within 30 days after the date of the notice, by notice in writing sent by facsimile transmission or registered mail to the board,

(a) dispute the reasons given by the board in its notice of intent to suspend or cancel, stating the grounds or reasons of dispute; or

(b) indicate that he or she intends within a specified time to correct the matters raised by the board as reasons for the notice of intent to suspend or cancel the licence.

Notification of hearing re proposed suspension or cancellation

14(3)       Where under subsection (1) the board has sent a licence holder a notice of intent to suspend or cancel his or her licence and the board

(a) has not received a notice of dispute in accordance with clause (2)(a); or

(b) has received a notice of dispute and is not convinced by the notice of dispute to change its intention to suspend or cancel;

the board shall in writing notify the licence holder that a hearing will be held by the board to determine whether the licence should be suspended or cancelled.

Notice shall state date, time and place of hearing

14(4)       A notice of hearing under subsection (3) shall include details of the date, time and place of the hearing.

Date of hearing

14(5)       The date fixed by the board for a hearing under this section shall not be later than 10 days after the end of the 30 day period referred to in subsection (2).

Licence holder may be represented

14(6)       The licence holder has the right to be represented by counsel, to adduce evidence and to make submissions at a hearing under this section.

Decision of board after hearing

15(1)       After the completion of a hearing under section 14, the board may

(a) revoke the notice of intent to suspend or cancel the licence;

(b) suspend the licence for a stated period; or

(c) cancel the licence.

Board shall notify licence holder of decision

15(2)       The board shall, not later than five working days after the completion of a hearing under section 14, notify the licence holder in writing of its decision.

Filing of retail price lists

16(1)       At the request of the board, a vendor who sells, consigns, leases, delivers or offers for sale or lease farm machinery or farm equipment or repair parts to dealers in Manitoba shall file with the board a copy of the vendor's current list of suggested retail prices of the farm machinery or farm equipment or repair parts, and a vendor who has filed a list of suggested list prices shall advise the board whenever any change is made in any of the prices.

Vendor to file list of names and addresses of dealers

16(2)       A vendor shall, on or before April 1 in each year, file with the board a list of the names and addresses of all the dealers with whom the vendor has dealership agreements or does business in Manitoba.

Vendor to advise of any changes

16(3)       A vendor shall notify the board within 30 days if the vendor makes any new dealership agreements or terminates any dealership agreements and, in the case of a termination, shall advise the board whether or not the termination was at the request of the dealer.

Board may request information

16(4)       The board may request a vendor to file a statement with the board, on or before January 1 of each year, providing the board with the name and address of the vendor's representative in Manitoba and, if no representative is located in Manitoba, the name and address of the representative responsible for distribution of the vendor's farm machinery or farm equipment in Manitoba, including the brand name or names under which the farm machinery or farm equipment is retailed.

DEALER-VENDOR BUSINESS DEALINGS AND DEALERSHIP AGREEMENTS

Application of sections 16.2 to 16.12

16.1        Sections 16.2 to 16.12 apply to every dealership agreement

(a) whether entered into before or after this section comes into force; and

(b) despite any provision to the contrary in the agreement.

S.M. 2000, c. 22, s. 5.

Definition of "terminate" in sections 16.3 to 16.11

16.2        In sections 16.3 to 16.11, "terminate", in relation to a dealership agreement, means to terminate, cancel, fail to renew, fail to extend or substantially change the competitive circumstances of the dealership agreement.

S.M. 2000, c. 22, s. 5.

Prohibition on termination of dealership agreement

16.3(1)     No vendor shall terminate a dealership agreement

(a) without cause; and

(b) subject to subsection (2), without an order of the court under subsection 16.5(3).

Exceptions

16.3(2)     A vendor does not require a court order to terminate a dealership agreement if

(a) the dealer has made an assignment in bankruptcy or has been petitioned into bankruptcy, and has not been discharged from bankruptcy; or

(b) the cause for termination is a cause prescribed in the regulations.

S.M. 2000, c. 22, s. 5.

Prohibition on discrimination

16.4        No vendor shall

(a) discriminate in the prices charged for its product to similarly situated dealers;

(b) impose substantially different contractual requirements on similarly situated dealers; or

(c) discriminate against or penalize a dealer for carrying on business as a dealer or agent for another vendor, or selling or servicing the product of another vendor.

S.M. 2000, c. 22, s. 5.

Application to court for order

16.5(1)     A vendor who wishes to terminate a dealership agreement shall, if clause 16.3(1)(b) requires an order, apply to the Court of Queen's Bench for a determination of whether the vendor has cause to terminate the agreement.

Order to protect parties' interests

16.5(2)     At the request of either the dealer or vendor at any time after the application is made, the court may make an order imposing any conditions on either or both of them that the court considers necessary to protect their respective business interests until a determination is made under subsection (3).

Order by the court

16.5(3)     If the court determines that the vendor has cause to terminate the agreement, the court

(a) shall make an order to that effect; and

(b) may impose conditions on the termination, including allowing the dealer an opportunity to correct the default.

S.M. 2000, c. 22, s. 5.

Circumstances that are cause for termination

16.6        For the purposes of a determination under section 16.5, any of the following circumstances constitute cause to terminate a dealership agreement:

(a) the dealer has made an assignment in bankruptcy or has been petitioned into bankruptcy, and has not been discharged from bankruptcy;

(b) the dealer's farm machinery or farm equipment business, or a substantial part of it, is being liquidated, and the liquidation materially affects the contractual relationship between the dealer and vendor;

(c) the dealer has defaulted under a security agreement between the dealer and vendor, or a guarantee of the dealer's financial obligations to the vendor has been revoked or discontinued;

(d) the dealer has failed to operate in the normal course of business for 14 consecutive days, or has otherwise abandoned the dealership;

(e) the dealer has pleaded or been found guilty of an offence affecting the contractual relationship between the dealer and vendor;

(f) the dealer has failed to substantially comply with the essential and reasonable requirements of the dealership agreement, if the requirements are not different from the requirements imposed on other similarly situated dealers;

(g) any other circumstance prescribed in the regulations.

S.M. 2000, c. 22, s. 5.

Circumstances that are not cause for termination

16.7        For the purposes of a determination under section 16.5, none of the following circumstances constitutes cause to terminate a dealership agreement:

(a) the executive management or ownership of the dealer has changed, unless the change is detrimental to the representation or reputation of the vendor's products;

(b) the dealer has refused to purchase or accept delivery of farm machinery or farm equipment, or a service, from the vendor, unless the farm machinery, farm equipment or service is necessary for the operation of farm machinery or farm equipment commonly sold by the dealer;

(c) the vendor desires further market penetration, while recognizing that the vendor may require the dealer to achieve, in comparison with other similarly situated dealers, a reasonable sales performance level of the vendor's product;

(d) the dealer is carrying on business as a dealer or agent for another vendor, or selling or servicing the product of another vendor;

(e) any other circumstance prescribed in the regulations.

S.M. 2000, c. 22, s. 5.

Mediation

16.8(1)     At the request of the dealer or vendor, the court shall by order appoint a mediator, unless it is satisfied that the purpose of the request is to delay its determination under section 16.5 unnecessarily or that mediation is not in the interests of justice. The mediator shall try to facilitate a settlement of the dispute.

Length of mediation period

16.8(2)     The court shall fix the length of the mediation period and may shorten or lengthen the period at the request of the dealer or vendor.

Parties may agree to extend mediation

16.8(3)     The dealer and vendor may agree to shorten or lengthen the mediation period.

Stay of proceedings

16.8(4)     No further proceedings may be taken in the application during the mediation period without leave of the court.

Choice of mediator

16.8(5)     If the dealer and vendor agree on the person to be appointed as mediator, the court shall appoint that person. Otherwise, the court shall appoint the mediator from the list of persons maintained under subsection (6).

List of mediators

16.8(6)     The minister shall establish and maintain, and may share with dealers and vendors, a list of persons who have indicated to the minister their willingness to act as mediators and have, in the opinion of the minister, qualities and experience that make them suitable persons to act.

Mediator to meet with parties

16.8(7)     The mediator shall meet and confer with the dealer and vendor as often as he or she considers necessary.

Parties must participate in good faith

16.8(8)     The dealer and vendor must participate in the mediation in good faith.

Mediator's report

16.8(9)     On or before the last day of the mediation period, the mediator shall file a report with the court that either sets out the agreement reached by the dealer and vendor or states only that they did not reach agreement. The mediator shall give copies to the dealer, vendor and board promptly after filing the report.

Admissions in course of mediation

16.8(10)    No evidence of anything said or of any admission or communication made in the course of the mediation is admissible in any proceeding.

Mediator's fees and expenses

16.8(11)    The court shall require the parties to pay the fees and expenses of the mediator, and shall specify the proportions or amounts of the fees and expenses that each must pay.

No liability

16.8(12)    No mediator is liable for any loss or damage suffered by any person by reason of any action or omission of the mediator in the discharge of the mediator's duties under this Act.

S.M. 2000, c. 22, s. 5.

Certain provisions void

16.9        The following provisions in a dealership agreement are void:

(a) a provision allowing for termination of the agreement without cause;

(b) a provision requiring the dealer to carry on exclusive dealings with the vendor, so as to prevent the dealer from, or penalize the dealer for, carrying on business as a dealer or agent of another vendor, or selling or servicing the product of another vendor;

(c) a provision that limits, modifies or makes inapplicable a benefit or remedy available to a dealer under this Act.

S.M. 2000, c. 22, s. 5.

Application to court for relief from termination

16.10(1)    A dealer who considers that his or her dealership agreement with a vendor has been terminated in contravention of section 16.3 may apply to the Court of Queen's Bench for relief.

Court may order reinstatement etc.

16.10(2)    On an application under subsection (1), the court may make any order that it considers appropriate, including one or more of the following:

(a) an order directing the vendor to reinstate a dealership agreement or restore any rights under a dealership agreement that have been terminated;

(b) an order enjoining the vendor from doing or continuing to do anything that contravenes this Act;

(c) an order awarding damages to the dealer for any loss resulting from the vendor's contravention of this Act;

(d) an interim order of the kind referred to in clause (a) or (b).

Application of section

16.10(3)    Subsections (1) and (2) apply despite any other penalty that may be imposed on the vendor under this Act with respect to the vendor's contravention of section 16.3.

S.M. 2000, c. 22, s. 5.

Termination by mutual agreement

16.11       Nothing in section 16.3 precludes a vendor and a dealer from terminating a dealership agreement by mutual agreement.

S.M. 2000, c. 22, s. 5.

Limitation of actions

16.12       No action or proceeding, other than an application under section 16.5 or 16.10, may be instituted or continued against the Crown or any other person based on any cause of action, whether arising before or after this section comes into force, for compensation, loss or damages, or for injunctive or declaratory relief, arising out of the application of sections 16.2 to 16.11 to a dealership agreement.

S.M. 2000, c. 22, s. 5.

SALE CONTRACT FOR NEW FARM MACHINERY OR FARM EQUIPMENT

Form and contents of sale contract

17(1)       When a dealer sells new farm machinery or farm equipment to a purchaser, or to a financial institution or financial leasing corporation in Manitoba that acquires it for a financial lease to a purchaser,

(a) the sale contract shall be in writing in a form prescribed in the regulations;

(b) the sale contract shall clearly set out the following:

(i) the name and address of the dealer and the purchaser or, in the case of a sale for a financial lease, the dealer and the financial institution or financial leasing corporation,

(ii) a detailed description of each piece of farm machinery or farm equipment purchased or given in trade, including the serial number and model numbers, power take-off, horsepower and similar information,

(iii) the nature and duration of all warranties given with the farm machinery or farm equipment, including the name, address and telephone number of the dealer and of the vendor responsible under the warranties,

(iv) the purchase price of each piece of farm machinery or farm equipment purchased and the trade-in value and fair market value of each piece given in trade, and the amount of the deposit, if any, and similar information,

(v) a statement as to whether the sale is for cash only or for credit, and the amount of the lien or security interest taken or promissory note or notes given, if any, for the purchase price or balance of the purchase price of the farm machinery or farm equipment, as well as the "cost of borrowing" as defined in The Consumer Protection Act,

(vi) the trial period and the procedure by which the purchaser may reject farm machinery or farm equipment during the trial period,

(vii) the terms under which repair parts will be available under normal and emergency conditions, and the procedure to be followed to obtain emergency parts and repairs,

(viii) any other information required under the regulations; and

(c) a duplicate copy of the sale contract shall be given by the dealer to the purchaser.

Sale contract to be signed

17(2)       A sale contract signed by a purchaser is not binding on him or her until

(a) it is signed by the dealer or an agent of the dealer authorized to bind the dealer; and

(b) a duplicate signed copy of the contract is delivered to the purchaser or mailed to the purchaser by registered mail at his or her mailing address as set out in the contract.

Non-application of subsection (2)

17(3)       Subsection (2) does not apply where the purchase price has been paid in full and the purchaser has taken delivery of the farm machinery or farm equipment.

Used parts to be specified in sale contract

17(4)       Where new farm machinery or farm equipment sold by a dealer has on it second-hand or used parts or attachments, these shall be clearly specified in the sale contract.

Sale contract not to be used for second-hand machinery

17(5)       Except as provided in subsection (4), the form of sale contract prescribed under subsection (1) shall not be used in the sale of second-hand or used farm machinery or farm equipment.

Sale contract to be retained

17(6)       A dealer shall retain his or her copy of a sale contract until

(a) all amounts payable under the contract have been paid; or

(b) all warranties or obligations under the contract or this Act with respect to the farm machinery or farm equipment that is the subject of the contract have expired or been satisfied.

Effect of non-compliance with form

17(7)       Where subsection (1) is not complied with, the contract shall not be invalid on that account only, but all the terms and conditions set out in the prescribed form of sale contract apply to the contract in the same manner as if it had been in the approved form.

Compliance with other statutes

17(8)       Nothing in this section dispenses with the necessity of a written contract when under any other enactment of the Legislature an instrument in writing is necessary to constitute a binding contract.

S.M. 2000, c. 22, s. 6.

Agreement to limit liability void

18          Any statement, agreement or bargain, oral or written, made or given in connection with the sale of farm machinery or farm equipment to the effect that the liability of the dealer or vendor as set out in this Act is limited or modified, is void.

Assignment of sale contract

19          Where a dealer assigns a sale contract or lien note to another person, the dealer or assignee shall not later than 30 days after the assignment, by facsimile transmission or registered mail, notify the purchaser of the name and address of the assignee.

Machinery and equipment represented to be new

20(1)       Except where second-hand or used parts or attachments are identified in the sale contract as provided in subsection 17(4), all farm machinery or farm equipment sold by a dealer under a sale contract in the prescribed form shall be deemed to have been sold on the representation that it was new, and where after the sale the machinery or equipment is found to be second-hand or used, the purchaser may within five days after the date of delivery return the machinery or equipment to the dealer.

Return of consideration

20(2)       Where under subsection (1) a purchaser returns the farm machinery or farm equipment, the dealer shall return to the purchaser all the consideration given by the purchaser to the dealer and any goods given by the purchaser in trade, in the same condition in which they were given, and if those goods or any part of them have been sold by the dealer, the dealer shall pay to the purchaser the market value of the goods sold as specified in the contract.

Payment of costs to repair

20(3)       Where in accordance with subsection (2) the dealer is required to return any goods given in trade by the purchaser but has, prior to the termination of the sale contract, incurred costs or performed work in repairing or reconditioning the trade-in, the dealer may refuse to return the trade-in until

(a) the purchaser has paid for the reasonable costs of the repairs or reconditioning, including labour, which shall be the usual shop rate for that dealer's repair shop at the time, and the time charged for doing the work shall be reasonable; or

(b) arrangements satisfactory to the dealer have been made for the payment of those costs.

LEASES, LEASE-PURCHASES AND FINANCIAL LEASES

Leases, lease-purchases and financial leases

21(1)       Clause 17(1)(b), subsections 17(4) and (6) and sections 18 and 19 apply with necessary modifications to leases, lease-purchases and financial leases of new farm machinery or farm equipment.

Lease, lease-purchase or financial lease may be assigned

21(2)       A lease, lease-purchase or financial lease may be assigned by the lessor, his or her assignee and any sub-assignee.

S.M. 2000, c. 22, s. 8.

WARRANTIES AND REPAIRS

Warranty

22(1)       Subject to subsections (2) to (5) and subsection (10), all new farm machinery or farm equipment

(a) sold by a dealer to a purchaser;

(b) leased by a dealer to a purchaser, whether with or without a right to purchase; or

(c) sold by a dealer to a financial institution or financial leasing corporation in Manitoba that acquires it for a financial lease to a purchaser;

shall carry a warranty against defects in material and workmanship.

Length of warranty

22(2)       The warranty provided for in subsection (1) shall apply for a period of one year from the date of first use of the farm machinery or farm equipment and shall include the cost of defective parts, labour and transportation up to a maximum distance of 80 km from the dealer's place of business or repair shop for repairs, except that the warranty covering transportation is to apply only

(a) when the farm machinery or farm equipment is incapable of being driven due to mechanical breakdown;

(b) where the dealer specifies that the farm machinery or farm equipment should not be driven due to its mechanical condition; or

(c) where the purchaser cannot deliver the farm machinery or farm equipment to the dealer's shop for repairs because of its significant size or weight or because of its nature.

Warranty enforceable by purchaser under financial lease

22(2.1)     A warranty that applies to farm machinery or farm equipment under clause (1)(c) is enforceable by the purchaser who leases the machinery or equipment under the financial lease.

Equipment not subject to statutory warranty

22(3)       The following parts, which may fail due to defective workmanship or material, are not subject to the warranty provisions of subsection (1) but are subject to the respective warranties provided by the manufacturers of the parts:

(a) tires;

(b) batteries;

(c) communications equipment;

(d) audio equipment;

(e) parts that are not essential to or required for any of the intended purposes of the farm machinery or farm equipment.

Unwarranted parts and material

22(4)       The following parts of, or materials used in, farm machinery or farm equipment are not subject to the warranty provisions of subsection (1):

(a) ignition parts;

(b) lubricants and oils;

(c) chemical liquids;

(d) spark plugs;

(e) fuses;

(f) lights;

(g) filters.

Limitation on warranty

22(5)       The warranty provided for in subsection (1) does not apply to farm machinery or farm equipment purchased by a custom operator.

Term re power of machinery or equipment

22(6)       A dealer shall state, as a term of a sale, lease or lease-purchase contract respecting new farm machinery or farm equipment, the power that the machinery or equipment is capable of developing at the engine or power take-off.

Dealer and vendor jointly and severally liable under warranty

22(7)       The dealer and vendor of farm machinery or farm equipment are jointly and severally liable to observe, keep and perform every warranty set out in this Act and the regulations in relation to that machinery or equipment.

Liability of dealer and assignee under warranty

22(8)       Where a dealer assigns to another person his or her rights under a sale, lease or lease-purchase contract, the dealer, the vendor, the assignee and any sub-assignees are jointly and severally liable with respect to every warranty set out in this Act and the regulations in relation to the farm machinery or farm equipment sold under the contract.

Optional additional warranties

22(9)       A dealer or vendor may offer a warranty to a purchaser with respect to new farm machinery or farm equipment in addition to the warranties referred to in subsections (1) to (3).

Non-application of warranty

22(10)      The warranty provided for in subsection (1) does not apply

(a) where the deterioration of parts is due to normal wear and tear;

(b) to parts excluded by the regulations; or

(c) to any failure of farm machinery or farm equipment to perform satisfactorily an intended purpose that is caused by the negligence of the purchaser or an operator of the machinery or equipment.

S.M. 2000, c. 22, s. 9.

Date of delivery

23(1)       The date of delivery of farm machinery or farm equipment

(a) in the case of a sale, is the date on which it is ready for use, and this date shall be specified in the sale contract; and

(b) in the case of a lease or lease-purchase, is the first day of the term of the lease.

Failure to meet date of delivery

23(2)       A dealer who cannot meet the date of delivery of farm machinery or farm equipment shall, at least five days before the date of delivery, notify the purchaser in writing of the new date of delivery, and the purchaser may, at his or her option, cancel the sale, lease or lease-purchase contract.

Return of consideration by dealer

23(3)       Where a purchaser cancels a contract under subsection (2), the dealer shall return to the purchaser all the consideration given by the purchaser to the dealer and any goods given by the purchaser in trade, in the same condition in which they were given, and if those goods or any part of them have been sold by the dealer, the dealer shall pay to the purchaser the market value of the goods sold as specified in the contract.

Payment of costs of repair

23(4)       Where under subsection (3), the dealer is required to return any goods given in trade by the purchaser but has, prior to the termination of the contract, incurred costs or performed work in repairing or reconditioning the trade-in, the dealer may refuse to return the trade-in

(a) until the purchaser has paid for the reasonable costs of the repairs or reconditioning, including labour, which shall be the usual shop rate for that dealer's repair shop at the time, and the time charged for doing the work shall be reasonable; or

(b) until arrangements satisfactory to the dealer have been made for the payment of those costs.

Acceptance of late delivery by purchaser

23(5)       If the purchaser, after being notified of late delivery under subsection (2), chooses to accept late delivery of the farm machinery or farm equipment purchased by him, the dealer shall

(a) in the interim, provide the purchaser with alternative farm machinery or farm equipment of approximately the same capacity and capability to carry out the intended purposes of the farm machinery or farm equipment ordered by the purchaser; or

(b) pay to the purchaser the normal rental rate for similar farm machinery or farm equipment as approved by the board, for the time that the machinery or equipment would have normally been used between the date of delivery determined in accordance with subsection (1) and the actual date of delivery;

unless the reason for the failure to deliver is beyond the control of the dealer.

Cancellation of contract by dealer

23(6)       Notwithstanding anything contained in this section, if the dealer or vendor, as the case may be, cannot complete delivery of farm machinery or farm equipment on or before the date of delivery determined in accordance with subsection (1), the dealer may not later than 15 days before the specified date of delivery cancel the contract and, in accordance with subsections (3) and (4), return to the purchaser all the consideration given by the purchaser and any goods given by the purchaser in trade.

Trial period to be specified in contract

24(1)       Every sale, lease and lease-purchase contract respecting new farm machinery or farm equipment shall clearly set out

(a) the intended purposes of the machinery or equipment; and

(b) a trial period for use after delivery, which shall be at least

(i) 50 hours of use for machinery or equipment that is equipped with an hour meter, or

(ii) 10 consecutive days starting on the first day of use for machinery or equipment that is not equipped with an hour meter;

and any dispute with respect to the computation of the trial period or the failure of the farm machinery or farm equipment to perform any of its intended purposes shall be referred to the board for its decision with regard to extending the trial period.

Rejection of machinery or equipment

24(2)       Subject to subsection (3), the purchaser may reject the farm machinery or farm equipment if, during the trial period set out in the contract, the machinery or equipment fails, under reasonable operating conditions and with proper care and maintenance, to satisfactorily perform its intended purposes.

Time for correcting defects

24(3)       In the event of a failure of the kind referred to in subsection (2), the purchaser shall without delay, in writing, notify the dealer of the failure

(a) by personally delivering the notice to the dealer at his or her regular place of business; or

(b) by facsimile transmission or registered mail;

and the dealer shall, within seven days after receiving the notification, correct the failure.

Cancellation of contract

24(4)       Where within the seven day period mentioned in subsection (3) the dealer is unable to make the farm machinery or farm equipment satisfactorily perform its intended purposes, the purchaser may reject the machinery or equipment and cancel the contract by notifying the dealer in writing by facsimile transmission or registered mail sent within three working days after the seven day period mentioned in subsection (3), in which case the dealer, in accordance with subsections 23(3) and (4), shall return to the purchaser all the consideration given by the purchaser and any goods given by the purchaser in trade.

Negligence of purchaser

24(5)       Subsections (2), (3) and (4) do not apply where the failure of the farm machinery or farm equipment to perform its intended purposes satisfactorily is due to the negligence of the purchaser or of any person operating the machinery or equipment with the authority of the purchaser.

Rejection of machinery or equipment in certain cases

25          Where a contract relates to the purchase, lease or lease-purchase of more than one piece of farm machinery or farm equipment, the purchaser may, under subsection 20(1), 23(2) or 24(2), reject only the machinery or equipment that

(a) is not new;

(b) is not delivered to the purchaser on or before the date of delivery determined in accordance with subsection 23(1); or

(c) fails in the manner set out in subsection 24(2) to perform one of its intended purposes;

and, subject to the provisions of subsections 20(2) and (3), subsections 23(3) and (4), or subsections 24(3) and (4), as the case may be, the dealer shall refund to the purchaser that portion of money paid or fair market value of any goods given in trade under the contract, that the price of the rejected machinery or equipment bears to the total price of the machinery or equipment purchased under the contract or leased under the contract with or without the right to purchase.

Replacement of defective parts

26(1)       Where, during the warranty period, parts in farm machinery or farm equipment are found to be defective, the dealer or the vendor, as the case may be, shall replace those parts promptly, and where a defective part causes damage to any other part, the damaged part shall likewise be replaced by the dealer or vendor.

Warranty on parts

26(2)       Where new parts are replaced by a dealer or vendor as provided under subsection (1), the new parts are subject to warranty against defects in materials and workmanship for the remainder of the warranty period of the farm machinery or farm equipment on which the parts are replaced.

Warranty on repair parts

27          Repair parts purchased from a dealer or vendor shall be warranted against defects as to material and workmanship for a period from the date of purchase, not to exceed 12 months, that is set out in the regulations, and the purchaser shall be refunded the full purchase price upon the return of the part to the dealer, or if this is not possible, to the vendor, within 30 days after the part proves to be defective.

Application to board

28(1)       Notwithstanding subsections 22(1) and (2), a purchaser of farm machinery or farm equipment who, with respect to any alleged defect in the farm machinery or farm equipment purchased or leased by him or her,

(a) has been refused a settlement or an offer of settlement from the dealer or vendor; or

(b) is offered a settlement by the dealer or vendor that he or she considers to be unfair;

may, within 30 days after the refusal or offer, as the case may be, in writing apply to the board for assistance in resolving the dispute.

Investigation and examination by board

28(2)       Upon receiving an application under subsection (1), the board shall carry out such investigations, including the examination of the farm machinery or farm equipment, as it considers necessary to determine whether or not the farm machinery or farm equipment is defective, and for the purpose of any such investigation or examination the board may engage the services of such experts as it considers necessary.

Decision by board

28(3)       After an investigation or examination under subsection (2), the board shall, where possible, decide whether or not the farm machinery or farm equipment is defective and may recommend a resolution of the dispute.

Legal action by purchaser

28(4)       Nothing in subsection (3) prohibits a purchaser from taking independent legal action against a dealer or vendor for damages with respect to an alleged defect in farm machinery or farm equipment purchased or leased by him from the dealer.

Decision shall be considered by court

28(5)       A decision of the board under this section shall be considered by the court in any action by the purchaser for damages as set out in subsection (4).

Certified copy of board's decision may be filed

28(6)       A copy of a decision of the board under this section, certified by the chairperson or other authorized officer of the board to be a true copy, shall be receivable in evidence by the court in an action by a purchaser for damages as set out in subsection (4), without any further proof or identification.

Board members, officers and staff not required to give evidence in civil suits

28(7)       No member or officer of the board, and no member of its staff, shall be required to give testimony in any civil suit to which the board is not a party, with regard to information obtained by him or her in the discharge of his or her official duties in connection with the board.

Availability of repair parts

29          Where a purchaser purchases or leases new farm machinery or farm equipment from a dealer, the dealer and the vendor shall ensure that repair parts for the farm machinery or farm equipment are available

(a) in the case of a purchase, other than a lease-purchase, for a period of 10 years from the date of the purchase;

(b) in the case of a lease, for the term of the lease; and

(c) in the case of a lease-purchase

(i) where the purchaser chooses not to purchase the machinery or equipment, for the term of the lease, and

(ii) where the purchaser chooses to purchase the machinery or equipment, for a period of 10 years from the first day of the term of the lease;

and where within that period the original purchaser orders repair parts for that farm machinery or farm equipment, the dealer and vendor shall ensure that those repair parts are available to the original purchaser within 14 days after the date of the order, unless delivery of the parts cannot be made within that time because of conditions beyond the control of the dealer or the vendor.

Emergency repair parts

30(1)       Every sale, lease and lease-purchase contract for new farm machinery or farm equipment shall provide that, during the relevant period for that type of contract set out in clause 29(a), (b) or (c), the purchaser can order emergency repair parts from the dealer at any time during the dealer's normal business hours during the designated season of use of the machinery or equipment.

When emergency repair part service shall be used

30(2)       The emergency repair part service referred to subsection (1) shall be used by the purchaser only when the farm machinery or farm equipment breaks down during its designated season of use and cannot with reasonable efficiency be operated to perform an intended purpose.

Notice to dealer

30(3)       A purchaser who is ordering emergency repair parts shall inform the dealer that the parts are required for emergency repairs and the dealer shall in turn inform the vendor to that effect.

Time for supplying emergency repair parts

30(4)       Where in accordance with subsections (2) and (3) a purchaser orders emergency repair parts from the dealer from whom he or she purchased or leased the farm machinery or farm equipment for which the parts are required, the dealer and vendor shall ensure that those parts are available to the purchaser at the dealer's place of business within 72 hours after the making of the order, not including Saturdays, Sundays and holidays, unless delivery of the parts cannot be made within that time because of conditions beyond the control of the dealer or vendor.

Dealer shall provide alternative equipment

31          Where the dealer and vendor are unable to deliver emergency repair parts within the time limit set out in subsection 30(4), they shall without delay provide the purchaser with, or arrange for the provision of, alternative farm machinery or farm equipment of approximately the same capacity and capability to carry out the intended purposes of the original farm machinery or farm equipment at 1/2 the normal rental rate for the alternative machinery or equipment as approved by the board.

Reimbursement by vendor for costs for late delivery

32(1)       Where under section 23 or 31 the fault for the late delivery of emergency repair parts or farm machinery or farm equipment is attributable to the vendor and not the dealer, and the dealer, in accordance with either of those sections, has made a payment to the purchaser or incurred an expense for supplying alternative farm machinery or farm equipment as required under either of those sections, the vendor shall reimburse the dealer for the payment made or expense incurred.

Sharing of costs for late delivery

32(2)       Where under section 23 or 31 the fault for late delivery of emergency repair parts or farm machinery or farm equipment is attributable to both the dealer and the vendor, a payment made or the expense of supplying alternative farm machinery or farm equipment as required under either of those sections, shall be shared by the dealer and the vendor in proportion to the degree of their fault, and where there is a dispute as to the proportion of fault between the dealer and the vendor, the matter shall be referred to the board to determine the degree of fault of the dealer and vendor respectively.

Dealer ceasing to carry on business

33          Where a dealer ceases carrying on business or is otherwise unable to provide warranty, repair and emergency repair part services as required under this Act, the vendor shall provide the purchaser with

(a) timely and convenient warranty and repair services through another dealer or directly to the purchaser; and

(b) emergency repair part service

(i) through a dealer who carries on business within 100 km driving distance of the usual storage place of the machinery or equipment, or

(ii) where no dealer carries on business within 100 km driving distance of the usual storage place of the machinery or equipment, directly to the purchaser.

IDENTIFICATION OF FARM MACHINERY AND FARM EQUIPMENT

Definition

34(1)       In this section, "model year", in relation to farm machinery or farm equipment, means the model year of the machinery or equipment as designated by its manufacturer, but where there is no designation, the model year of machinery or equipment, the manufacturing of which is completed between September 1 and August 31 of the following year, shall be the calendar year of that following year.

Application of section

34(2)       This section applies to any type of farm machinery or farm equipment prescribed in the regulations.

Model year to be shown on machinery and equipment

34(3)       No vendor shall sell, consign, lease, deliver or offer for sale or lease farm machinery or farm equipment to a dealer in Manitoba unless the model year is legibly identified on the serial number plate or label of the machinery or equipment.

Serial number not to be defaced

34(4)       No person shall obliterate, deface, alter, render illegible or remove the manufacturer's serial number or the imprint indicating the model year of farm machinery or farm equipment.

LIENS

Definition of lienholder

35(1)       In this section and sections 36 to 43, "lienholder" means a dealer or vendor, or a financing agent such as a bank, credit union, acceptance corporation, or any other person or company, who provides credit or financing to a purchaser for the purchase of farm machinery or farm equipment to which this Act applies.

Liens

35(2)       A lienholder shall have a lien upon farm machinery or farm equipment for unpaid purchase money only if the lien is provided for in a lien note that

(a) where the machinery or equipment is new, is set out in the sale contract in the prescribed form; and

(b) where the machinery or equipment is second-hand or used,

(i) is set out in the agreement of purchase and sale, and

(ii) is in the same form and contains the same terms and conditions as the lien note set out in the prescribed form of sale contract,

whether or not the agreement is for machinery or equipment that is purchased under a lease-purchase contract.

Application of The Personal Property Security Act

35(3)       Nothing in this Act exempts a lien or lienholder from the provisions of Parts III and IV of The Personal Property Security Act and, subject to subsection 69(2) of that Act, a lien is a security interest within the meaning of that Act.

Creation of other security interests

35(4)       Nothing in this Act affects the right of a person to create a security interest other than a lien under this Act in farm machinery or farm equipment

(a) owned by the person; or

(b) being purchased by the person from a dealer without the provision of credit by or through the dealer.

Limitation on application of lien

36(1)       Only the unpaid balance of the purchase price of the farm machinery or farm equipment sold under the sale contract or agreement of purchase and sale may be secured by a lien.

Collateral liens prohibited

36(2)       No part of the price of new or used farm machinery or farm equipment may be secured by a lien on any goods not sold under the sale contract or agreement of purchase and sale for the machinery or equipment.

Title remains in lienholder

37(1)       Property in and title to farm machinery or farm equipment that is sold by a dealer to a purchaser and is subject to a lien remains in the lienholder until payment is made in full of the purchase price of the machinery or equipment.

Possession in purchaser

37(2)       Despite subsection (1) and subject to sections 38 to 43, a purchaser is entitled to the possession and use of the farm machinery or farm equipment, but while it is in the purchaser's possession or is being used by him or her, the farm machinery or farm equipment shall be at the risk of the purchaser as to damage or destruction, and in the event of its damage or destruction the purchaser shall remain liable for payment of all unpaid amounts under the lien note.

Repossession without leave prohibited

38(1)       A lienholder shall not repossess farm machinery or farm equipment that is subject to a lien without leave of the board and except in accordance with this Act.

Application to board to repossess

38(2)       Where a purchaser

(a) is in default of payment under a lien note;

(b) abandons or permanently parts with possession of the farm machinery or farm equipment that is subject to the lien;

(c) with the intention of defeating the lienholder's lien, conceals the farm machinery or farm equipment that is subject to the lien or removes it from the province;

(d) further encumbers or pledges any of the farm machinery or farm equipment; or

(e) causes or allows the farm machinery or farm equipment to deteriorate or be damaged, or exposes it to the risk of deterioration, damage or loss, other than normal wear and tear, such that its value as security it significantly diminished;

the lienholder may apply to the board for leave to repossess the machinery or equipment.

Application requirements

38(3)       A lienholder shall make an application for leave to repossess farm machinery or farm equipment on a form approved by the board, and with it shall submit the information or documentation required by the board and the fee set out in the regulations and, at the same time as the application is made to the board, shall send a copy of the application to the purchaser by facsimile transmission or registered mail.

Copy of contract to accompany application

38(4)       An application for leave to repossess shall be accompanied by a copy of the sale contract and shall state

(a) the dates on which payments were made in connection with the sale contract or agreement of purchase and sale and the amount of each payment;

(b) the amount in arrears, including interest on overdue amounts;

(c) the total amount owing under the lien note at the time of the application; and

(d) the value, as set out in a recognized industry guide, that the lienholder places on the farm machinery or farm equipment at time of application to repossess.

Matters to be considered by the board

38(5)       In deciding whether to grant leave to repossess, the board shall consider all relevant circumstances including, without limitation, the following matters:

(a) the original purchase price of the farm machinery or farm equipment in respect of which the lienholder is applying for leave to repossess;

(b) the rate of depreciation of the farm machinery or farm equipment;

(c) the proportion of the purchase price that has been paid by the purchaser;

(d) the interest rate provided for in the lien note;

(e) the amount of default in payment under the lien note, if any, and the length of time that the purchaser has been in default or that has elapsed since the occurrence of any of the events set out in clauses 38(2)(b) to (e) giving rise to the application for leave to repossess;

(f) the amount of any payments in default, if any, since the date of the application;

(g) the location and condition of the farm machinery or farm equipment;

(h) the realizable value of current assets possessed by the purchaser that might at some future date be used to pay the outstanding amount under the lien note;

(i) any other relevant circumstance of which the board is informed by the purchaser or lienholder.

Purchaser to be notified of hearing date

38(6)       The board shall notify the purchaser of the date on which the lienholder's application will be heard by the board, and the purchaser has the right to appear before the board at the hearing and present evidence and make submissions, but, at the request of the lienholder and where the board is satisfied that it is warranted in the circumstances, the board may consider the application without notice to the purchaser and may grant the lienholder interim leave to repossess subject to a hearing in accordance with subsection (7).

Hearing and decision by board

38(7)       Within five weeks after receipt of application for leave to repossess, the board shall hear the application, and, after making its decision, it shall provide a copy of the decision to both the lienholder and the purchaser without delay.

Application to court for revocation order

38(8)       The purchaser or the lienholder may within 10 days after the date of the decision of the board apply to a judge of the Court of Queen's Bench

(a) in the case of the purchaser, for an order revoking the leave to repossess; or

(b) in the case of the lienholder, for an order granting leave to repossess.

Procedure on application to court

38(9)       An application under this section shall be made and heard in accordance with the Queen's Bench Rules, provided that the applicant shall serve the board with a copy of the notice of application within the time set out in the Queen's Bench Rules for service of the notice of application on the respondent.

Retention for 10 working days

39(1)       A lienholder who repossesses farm machinery or farm equipment with leave from the board shall retain it for at least 10 working days, during which time the purchaser may redeem the machinery or equipment on payment of

(a) the total amount of any payments then in default under the lien note;

(b) any accrued interest on payments past due, at the rate set out in the lien note; and

(c) the actual, documented expenses of taking and keeping possession.

Notice of repossession by lienholder

39(2)       After repossessing farm machinery or farm equipment, the lienholder shall notify the purchaser and the board in writing of the repossession, setting out

(a) a detailed description of the machinery or equipment that has been repossessed;

(b) the date on which the machinery or equipment was repossessed;

(c) a detailed statement of the amount required to redeem the machinery or equipment;

(d) the date on or before which the goods may be redeemed;

(e) the place where the machinery or equipment is, or is to be, kept; and

(f) the name and address of the lienholder or the lienholder's agent from whom the purchaser may redeem the machinery or equipment;

by sending the notice by facsimile transmission or registered mail to the board and to the purchaser within two working days after the repossession.

Failure of lienholder to give notice

39(3)       Where a lienholder fails to give notice as required under subsection (2), the repossession of the farm machinery or farm equipment is not invalidated, but the time allowed to the purchaser to redeem the machinery or equipment or to apply to the court for an order revoking the leave of the board to repossess shall be extended to 20 working days from the date of repossession.

Repossessed machinery and equipment at risk of lienholder

39(4)       During the period referred to in subsection (1) or (3), the farm machinery or farm equipment shall be at the risk of the lienholder as to damage and destruction, and the lienholder shall use reasonable care to protect the machinery or equipment from damage or loss.

Leave to repossess terminates on redemption

40(1)       Subject to subsection (2), the redemption of repossessed farm machinery or farm equipment under section 39 terminates the leave to repossess granted by the board.

Continuing leave may be granted

40(2)       The board may, if it considers it appropriate on a lienholder's second or subsequent application for leave to repossess the same farm machinery or farm equipment, order that leave to repossess

(a) will continue until the purchaser has paid all amounts due to the lienholder under the lien note in respect of that machinery or equipment; and

(b) will not terminate on the redemption of the machinery or equipment.

Purchaser to produce machinery and equipment

41          No purchaser shall refuse to produce or make available to a lienholder farm machinery or farm equipment that the lienholder is authorized to repossess under this Act.

Sale with consent of purchaser

42(1)       Notwithstanding anything contained in section 38, 39 or 40, a lienholder may, with the written consent of the purchaser, repossess and sell farm machinery or farm equipment that is subject to the lien.

Sale by lienholder

42(2)       A lienholder may sell repossessed farm machinery or farm equipment where

(a) the purchaser fails to redeem the machinery or equipment within

(i) the 10 working days mentioned in subsection 39(1), or

(ii) the 20 working days mentioned in subsection 39(3);

(b) an application made by the purchaser to the court under subsection 38(8) is dismissed; or

(c) the purchaser consents to the sale of farm machinery or farm equipment in accordance with subsection (1).

Disposition of proceeds of sale

42(3)       A lienholder who under this section sells farm machinery or farm equipment is entitled to retain

(a) the amount owed by the purchaser with respect to that machinery or equipment under the lien note, including accrued interest, if any;

(b) the costs of repossession and sale not exceeding 10% of the selling price; and

(c) the cost of repairs to the machinery or equipment that were necessary in order to facilitate its sale;

and shall turn over any surplus without delay to the purchaser.

Purchaser's liability is discharged

42(4)       Where a lienholder repossesses and sells farm machinery or farm equipment and the amount realized from the sale is less than the amount owed by the purchaser with respect to that machinery or equipment under the lien note, the indebtedness of the purchaser with respect to that machinery or equipment is nevertheless fully discharged and no action is maintainable by the lienholder against the purchaser to recover the balance of that indebtedness.

Written statement by lienholder

42(5)       Within 15 days after the completion of a sale of farm machinery or farm equipment under this section, the lienholder shall provide the purchaser and the board with a written statement showing

(a) the selling price of the machinery or equipment;

(b) the total costs of repossession and sale; and

(c) the cost of necessary repairs, if any, that were made to the machinery or equipment in order to facilitate its sale.

Damage to farm machinery or farm equipment

42(6)       A lienholder who under this Act

(a) repossesses farm machinery or farm equipment and finds that it was wilfully damaged; or

(b) is unable to repossess farm machinery or farm equipment because it is dismantled in such a way as to render repossession impracticable or because the purchaser fails or refuses to produce it;

may in writing request that the board order that the purchaser's indebtedness with respect to that machinery or equipment is not fully discharged, and upon so doing, shall send a copy of the request to the purchaser by facsimile transmission or registered mail.

Investigation by board

42(7)       Upon receipt of a request under subsection (6), the board shall promptly investigate the matter and

(a) if it is satisfied that the request of the lienholder is justified, it shall, notwithstanding subsection (4), order the purchaser to pay to the lienholder such amount as the board considers fair and reasonable, plus interest in accordance with the lien note; or

(b) if it is satisfied that the request of the lienholder is not justified, deny the request;

and shall, in writing, notify the lienholder and the purchaser of its decision.

Assignment of earnings

43(1)       Where a purchaser is in arrears in his or her payments as required under the terms of a lien note and is using the farm machinery or farm equipment to do work for other persons or is renting it to other persons, the lienholder may apply to a judge of the Court of Queen's Bench, without notice, for an order for an assignment of the purchaser's earnings from the work or of the rent.

Limitation on amount of earnings assigned

43(2)       The amount of the earnings ordered to be assigned under subsection (1) shall not exceed 50% of the purchaser's earnings from the work done with the farm machinery or farm equipment or of the rent.

Service of order

43(3)       The lienholder shall, within seven days after the making of an order under subsection (1),

(a) serve a copy of the order on the purchaser personally; or

(b) send a copy of the order to the purchaser by facsimile transmission or registered mail.

Pro rating of earnings

43(4)       Where a purchaser

(a) has two or more pieces of farm machinery or farm equipment subject to liens by different lienholders;

(b) is in arrears to each of those lienholders; and

(c) is using those pieces of farm machinery or farm equipment to do work for other persons, or is renting them to other persons, in such a way that it is difficult to ascertain accurately the earnings or rent attributable to each piece;

the court in making an order under subsection (1) may, subject to subsection (2), order that the earnings or rent be prorated among the lienholders in accordance with the amount of the arrears payable to each lienholder.

Credit to purchaser's account

43(5)       Any money received by a lienholder under this section shall be credited by the lienholder towards the reduction of the purchaser's indebtedness to the lienholder.

PURCHASE OF UNUSED STOCK FROM DEALER BY VENDOR

Definitions

44(1)       In this section and sections 45 to 52,

"allowance" means an amount paid to a dealer or credited to a dealer's account by a vendor in respect of the purchase by the dealer of repair parts or farm machinery or farm equipment, and includes a discount, bonus, rebate or other type of payment that results in a reduction in the cost of the item or items to the dealer; (« déduction »)

"current net price" means the price payable for an unused part by a dealer, as shown in the vendor's current price list and without taking into account any allowance granted by the vendor; (« prix courant net »)

"invoice price" means the price payable for unused farm machinery or farm equipment by a dealer as shown on an invoice prepared by the vendor, less the amount of any unearned allowance granted by the vendor in respect of that unused farm machinery or farm equipment; (« prix facturé »)

"unearned allowance" means an allowance granted by a vendor to a dealer subject to the fulfilment by the dealer of a condition that has not been fulfilled, but does not include an allowance for a payment made by a dealer within a specified time; (« déduction non gagnée »)

"unused farm machinery or farm equipment" means farm machinery or farm equipment that has not been operated for a distance or for a period of time in excess of that required to deliver the machinery or equipment to the dealer and to enable the dealer to service, prepare and operate it for the purposes of sale; (« machines ou matériel agricoles non utilisés »)

"unused part" means a part or parts assembly that has not been used, but does not include

(a) a part that has been broken or damaged,

(b) a parts assembly that is incomplete and cannot be made complete at reasonable expense,

(c) a part or parts assembly that has been removed from farm machinery or farm equipment and replaced at no cost to the dealer for parts under a modification or warranty substitution program, or

(d) a seal, hose or other part made of rubber, a gasket made of cork or composition material, a seal made of leather, a liquid chemical that has deteriorated and is of limited use, or paint; (« pièce non utilisé »)

"used farm machinery or farm equipment" means farm machinery or farm equipment

(a) that has been operated for a distance or for a period of time in excess of that required to deliver the machinery or equipment to the dealer and to enable the dealer to service, prepare and operate it for the purposes of sale, or

(b) that has been taken in trade by the dealer,

and includes vendor-approved demonstrator equipment; (« machines ou matériel agricoles usagés »)

"vendor-approved demonstrator equipment" means farm machinery or farm equipment that was sold and invoiced to, and used by, a dealer as a demonstrator; (« démonstrateur approuvé »)

"vendor's current price list" means the latest issue of the vendor's comprehensive price list of all parts that may be ordered by a dealer from the vendor. (« liste des prix courants des vendeurs »)

Vendor to purchase unused machinery and parts

44(2)       Where a dealership agreement expires or is terminated by the dealer or the vendor, the vendor shall, subject to this Act and the regulations, take inventory of, and purchase and accept from the dealer at the dealer's place of business, all unused farm machinery or farm equipment, vendor-approved demonstrator equipment and unused parts that the dealer obtained from the vendor.

Vendor not obligated to purchase

44(3)       A vendor is not obligated to purchase under subsection (2) if the dealer refuses to allow the vendor to enter the dealer's place of business where the unused farm machinery or farm equipment and unused parts are located.

Payment by vendor

45(1)       A vendor who purchases unused farm machinery or farm equipment, vendor-approved demonstrator equipment or unused parts from a dealer under subsection 44(2) shall pay the dealer

(a) for unused farm machinery or farm equipment, 100% of the invoice price, plus the transportation costs paid by the dealer;

(b) for vendor-approved demonstrator equipment, 100% of the invoice price less depreciation, plus transportation costs paid by the dealer and assembly costs; and

(c) for unused parts,

(i) 90% of the current net price, if the dealership agreement expired or was terminated by the dealer, or

(ii) 100% of the current net price, if the dealership agreement was terminated by the vendor;

plus interest on any amount payable under clauses (a) to (c) at the rate provided for under the dealership agreement in relation to amounts payable by the dealer to the vendor, calculated from the first day of the second month after the day the amount becomes due and payable.

Signing of declaration by dealer

45(2)       Before cash settlement is made of a dealer's account the vendor may require the dealer to sign a declaration that the parts, machinery or equipment being purchased by the vendor are free from liens and encumbrances, and refusal by the dealer to sign such a declaration releases the vendor from the obligation to purchase.

When payment from vendor is due

45(3)       The amount payable by a vendor to a dealer for unused farm machinery or farm equipment, vendor-approved demonstrator equipment or unused parts becomes due and payable on the earlier of

(a) the 90th day after the vendor receives the notice to purchase from the dealer; or

(b) the 30th day after the vendor removes all the unused farm machinery or farm equipment, vendor-approved demonstrator equipment or unused parts from the possession of the dealer.

Time for payment may be extended

45(4)       The time for payment under subsection (3) may be extended

(a) by agreement between the vendor and the dealer; or

(b) by an order of the Court of Queen's Bench, upon the application of the vendor, returnable not later than 120 days after the day on which the vendor received the notice to purchase, if the court is satisfied that the vendor's failure to remove all the unused farm machinery or farm equipment, vendor-approved demonstrator equipment or unused parts from the possession of the dealer was caused by circumstances beyond the vendor's control or by the fault of the dealer.

Payment under terminated agreement

46          Where a dealership agreement expires or is terminated by the vendor and the vendor has a security interest in used farm machinery or farm equipment which is unsold by the dealer, the amount payable by the dealer to the vendor under the security agreement, regardless of the date of expiry or termination of the dealership agreement, becomes due and payable on the date specified in the security agreement unless the dealer and the vendor agree, in writing, on another date.

Service of notice to purchase on vendor

47          A dealer shall, within 90 days after the day an agreement expires or is terminated,

(a) personally serve on the vendor or an officer of the vendor; or

(b) send by facsimile transmission or registered mail to the vendor;

a written or printed notice to purchase containing a request by the dealer that the vendor purchase the unused farm machinery or farm equipment, vendor-approved demonstrator equipment or unused parts that were obtained from the vendor, and if the dealer fails to do so, the vendor is not required to purchase.

Parts to be clearly identified

48          A vendor is not required to purchase

(a) an unused part that is not clearly identified by a ticket, tag or imprint on the part, or by being in a box or other container that identifies the part; or

(b) an unused part that is not listed in the vendor's current price list, except where the part is still current and unchanged but the part number has been superseded by a new number.

Care and custody of unused farm machinery or farm equipment

49          A dealer is responsible for the care and custody of unused farm machinery or farm equipment, vendor-approved demonstrator equipment or unused parts until the earlier of

(a) the day the vendor removes it from his or her possession; or

(b) the 90th day after the vendor receives the notice to purchase in accordance with section 47;

after which the vendor is responsible.

Adequate packaging of machinery and equipment

50          A dealer is responsible for

(a) preparing adequately each piece of unused farm machinery or farm equipment or vendor-approved demonstrator equipment; and

(b) packaging, crating or otherwise preparing adequately each attachment to unused farm machinery or farm equipment and each unused part;

so that it is acceptable by a carrier for shipment from the dealer's place of business.

Deductions by vendor for parts

51(1)       A vendor may deduct from the amount payable by him or her to a dealer for purchasing unused farm machinery or farm equipment, vendor-approved demonstrator equipment or unused parts an amount equal to the cost to the vendor of supplying and installing any missing or damaged part at the part's current net price, including a reasonable charge for the installation.

Deductions by dealer or vendor

51(2)       In addition to any other remedy,

(a) a dealer may recover an amount owing to him or her by a vendor under subsection 45(1) by deducting that amount from any amount he or she owes to the vendor; and

(b) a vendor may recover an amount owing to him or her by a dealer by deducting that amount from any amount he or she owes to the dealer under subsection 45(1).

Cost of repainting

52          A vendor who undertakes to repaint unused farm machinery or farm equipment, vendor-approved demonstrator equipment or unused parts is responsible for the cost unless the dealer agrees in advance, in writing, to share the cost.

MISCELLANEOUS

Notification by facsimile transmission

53(1)       Wherever this Act provides that a person shall receive a notification or be sent or provided with a document by facsimile transmission, the following conditions apply:

(a) a legible copy of the notification or document and all required attachments shall be transmitted by facsimile to the last facsimile telephone number for the intended recipient known to the sender;

(b) the sender shall obtain and maintain a written confirmation of transmission showing the date and time of the confirmed transmission and the telephone number at which the transmission was received, and shall produce the written confirmation to the board if required to do so by the board;

(c) in the absence of proof to the contrary, the notification or document shall be deemed to have been received by the intended recipient on the first working day after the date shown in the confirmation referred to in clause (b).

Notification by registered mail

53(2)       Except as provided in subsection 17(2), wherever this Act provides that a person shall receive a notification or document by registered mail, the following conditions apply:

(a) a copy of the notification or document and all required attachments shall be mailed by registered mail, with proof of delivery, to the last address for the intended recipient known to the sender;

(b) the notification or document shall be deemed to have been received by the intended recipient on the fifth working day after the date of receipt shown in the proof of delivery referred to in clause (a).

Minister may enter into agreement

54           The minister may enter into any agreement that he or she considers necessary for the purposes of this Act.

THE FARM MACHINERY AND EQUIPMENT ACT FUND

The Farm Machinery and Equipment Act Fund continued

55(1)       The Farm Machinery and Equipment Act Fund is continued.

Fund to be administered by the board

55(2)       The Fund shall be administered by the board in accordance with this section and the regulations for the purpose of paying claims of purchasers for money owed to them by dealers or vendors under this Act and for the purpose of providing annual coverage to dealers and vendors respecting such claims.

Board may impose annual levy

55(3)       Where the amount of the Fund is less than $400,000., the board shall collect an annual levy from dealers and vendors in an amount set out in the regulations to maintain the Fund.

Control and supervision of Fund

55(4)       The Fund shall be under the control and supervision of the minister, and shall be deposited with the Minister of Finance and held in trust for the purposes of this Act in a separate account in the Consolidated Fund.

Investment of money in Fund

55(5)       The Minister of Finance may in accordance with The Financial Administration Act invest any money in the Fund not immediately required for the payment of claims, as determined by the board, and any earnings on the money invested shall be credited to the Fund.

Payment of claims from the Fund

55(6)       On the written requisition of the board, the amount of a claim approved for payment by the board in accordance with the regulations may be paid to a claimant from the Fund.

Other payments from the Fund

55(7)       When the amount of the Fund exceeds the amount set out in subsection (3), the Lieutenant Governor in Council may authorize expenditures from the Fund for

(a) costs of the board incurred in administering the Fund; and

(b) [repealed] S.M. 2013, c. 48, s. 7;

(c) other costs incurred in administering this Act.

Fiscal reporting

55(8)       Each year, the minister shall cause a financial statement of the Fund to be prepared, which is to be included in the annual report of the department over which the minister presides.

S.M. 2000, c. 35, s. 43; S.M. 2013, c. 48, s. 7.

ENFORCEMENT

Appointment of inspectors

56(1)       The minister may appoint any person as an inspector for the purpose of this Act.

Certificate to be produced

56(2)       An inspectors is to be provided with a certificate, in a form established by the minister, certifying the appointment, and on entering any place under this Act, shall show the certificate to the person in charge of the place if the person requests proof of the appointment.

No obstruction

57(1)       No person shall obstruct or hinder, or make a false or misleading statement to, an inspector who is carrying out duties or functions under this Act.

Assistance to inspector

57(2)       The owner or person in charge of a place referred to in section 58 and every person found in that place shall give the inspector all reasonable assistance to enable the inspector to carry out his or her duties and shall furnish the inspector with any information the inspector may reasonably require.

Entry and inspection

58(1)       An inspector may, at any reasonable time and where reasonably required to determine compliance with this Act,

(a) enter and inspect any place in which the inspector believes on reasonable grounds there is farm machinery or farm equipment or another thing in respect of which this Act applies;

(b) take photographs of the place and any farm machinery or farm equipment or any other thing located in that place;

(c) open any container that the inspector believes on reasonable grounds contains a thing in respect of which this Act applies; and

(d) require any person to produce for inspection or copying any record or other document that the inspector believes on reasonable grounds contains any information relevant to the administration of this Act.

Use of data processing system and copying equipment

58(2)       In carrying out an inspection at any place under this section, an inspector may

(a) use a data processing system at the place to examine any data contained in or available to the system;

(b) reproduce any record from the data in the form of a print-out or other intelligible output and take the print-out or other output for examination or copying; and

(c) use any copying equipment at the place to make copies of any record or other document.

Records

58(3)       An inspector may remove any records or documents that he or she is entitled to examine or copy or otherwise reproduce but shall give a receipt to the person from whom they were taken and promptly return them on completion of the examination.

Warrant to enter a dwelling place

59(1)       An inspector may not enter a dwelling place except with the consent of the occupant or under the authority of a warrant.

Authority to issue warrant

59(2)       A justice who is satisfied by information on oath that

(a) the conditions for entry described in subsection 58(1) exist in relation to a dwelling place;

(b) entry to the dwelling place is necessary for a purpose relating to the administration of this Act; and

(c) entry to the dwelling place has been refused or there are reasonable grounds to believe that entry will be refused;

may at any time issue a warrant authorizing the inspector and any other person named in the warrant to enter the dwelling place, subject to any conditions that may be specified in the warrant.

Warrant to search and seize

60(1)       A justice who is satisfied by information on oath that there are reasonable grounds to believe that

(a) an offence under this Act has been committed; and

(b) there is to be found in any place farm machinery or farm equipment or another thing that will afford evidence in respect of the commission of an offence;

may at any time issue a warrant authorizing an inspector and any other person named in the warrant to enter and search the place for the farm machinery or farm equipment or other thing, and to seize and detain it.

Use of force

60(2)       An inspector and any other person named in the warrant may use whatever reasonable force is necessary to execute the warrant and may call on a police officer for assistance in executing the warrant.

Additional seizure powers

60(3)       An inspector who executes a warrant may seize and detain, in addition to farm machinery or farm equipment or another thing mentioned in the warrant, any farm machinery or farm equipment or other thing which the inspector believes on reasonable grounds is being used to commit the offence or which is evidence of the offence.

Where warrant not necessary

60(4)       An inspector may exercise any of the powers mentioned in this section without a warrant if the conditions for obtaining a warrant exist but, by reason of exigent circumstances, it would not be practical to obtain a warrant.

Storage of seized things

60(5)       Farm machinery or farm equipment or another thing seized and detained under this section may be stored by an inspector, or by a person designated by an inspector, in the place where it was seized or it may, at the inspector's discretion, be removed to any other place for storage.

Offence and penalty

61          Any person who contravenes a provision of this Act or the regulations for which a penalty is not otherwise provided is guilty of an offence and is liable on summary conviction

(a) for a first offence, to a fine of not more than $5,000. or to imprisonment for a term of not more than six months; and

(b) for each subsequent offence, to a fine of not more than $10,000. or to imprisonment for a term of not more than one year.

REGULATIONS

Regulations by minister

62(1)       The minister may make regulations

(a) prescribing a form of sale contract to be used by dealers in connection with the sale of new farm machinery or farm equipment;

(b) prescribing types of farm machinery or farm equipment on which the model year must be shown as provided for in section 34;

(c) excluding parts of farm machinery or farm equipment from the warranties under this Act;

(d) respecting warranties on repair parts;

(e) prescribing fees payable under this Act;

(f) respecting applications for dealer and vendor licences and renewals thereof and prescribing the requirements to be met by applicants for those licences;

(g) respecting the issue, period of validity and renewal of licences and prescribing terms and conditions to which a licence may be subject;

(h) prescribing the duties of holders of licences;

(i) prescribing the circumstances under which a licence may be suspended or cancelled by the board, other than those set out in the Act, or under which the renewal of a licence may be refused;

(j) prescribing the duties of the holder of a licence that has been suspended or cancelled or has terminated and not been renewed;

(k) providing for the reinstatement of a licence that has been suspended or cancelled;

(k.1) for the purposes of clause 16.3(2)(b), providing for circumstances that constitute cause to terminate a dealership agreement without a court order;

(k.2) for the purposes of clause 16.6(g), providing for circumstances that constitute cause to terminate a dealership agreement;

(k.3) for the purposes of clause 16.7(e), providing for circumstances that do not constitute cause to terminate a dealership agreement;

(l) respecting the procedure to be followed by a purchaser in ordering emergency repair parts and by a dealer or a vendor in supplying them;

(m) designating the season of use of any particular type of farm machinery or farm equipment;

(n) designating machinery or equipment that is not farm machinery or farm equipment for the purposes of this Act based on any criteria that the board considers appropriate;

(o) for the purpose of the administration of the Fund, respecting

(i) categories or classes of dealers and vendors,

(ii) the amount to be levied annually against dealers and vendors in general or against each category or class of dealer or vendor for the purpose of maintaining the Fund,

(iii) the persons or classes of persons who may file claims with the board against the Fund,

(iv) the time during which and the manner in which a claim may be filed with the board,

(v) the maximum allowable amount of a claim against dealers and vendors in general or each category or class of dealer or vendor,

(vi) the manner of proving the claims,

(vii) the manner in which claims may be paid,

(viii) the investigation of any claim by the board for the purpose of determining its validity.

Retroactive regulations

62(2)       A regulation made under any of clauses (1)(k.1) to (k.3) may be made retroactive to a day not earlier than the day on which sections 16.1 to 16.12 come into force.

S.M. 2000, c. 22, s. 10.

DISESTABLISHMENT OF FORMER BOARD AND TRANSITIONAL PROVISIONS

Definitions

62.1        The following definitions apply in this section and sections 62.2 to 62.6.

"current board" means the Manitoba Farm Industry Board established by subsection 3(1) of The Family Farm Protection Act. (« commission actuelle »)

"former Act" means this Act as it read immediately before the coming into force of this section. (« loi antérieure »)

"former board" means The Farm Machinery Board continued by subsection 3(1) of the former Act. (« ancienne commission »)

S.M. 2013, c. 48, s. 7.

Former board disestablished

62.2(1)     On the coming into force of this section,

(a) the former board is disestablished; and

(b) the appointments of the members of the former board are terminated, and all rights and obligations of the members in relation to or under those appointments are extinguished.

Limited continuation of former Act and board

62.2(2)     Despite subsection (1),

(a) the former Act continues in force; and

(b) the former board, consisting of the members of the board in office on the day before this section came into force, is continued;

to the extent necessary to permit the former board to complete any matter in relation to which it has heard or considered evidence or submissions before the coming into force of this section.

Other matters before the former board

62.2(3)     Except in the circumstances described in subsection (2), all matters before the former board when this section comes into force must be dealt with in accordance with this Act by the current board.

S.M. 2013, c. 48, s. 7.

Legal proceeding or action against former board

62.3        A legal proceeding or action commenced against the former board may be continued against the current board as if it were the former board and the former Act were still in force.

S.M. 2013, c. 48, s. 7.

Judicial review of decisions of former board

62.4        If a person commences a legal proceeding for judicial review of a decision or action of the former board, the proceeding must be taken against the current board.

S.M. 2013, c. 48, s. 7.

Orders continued

62.5        All orders made by the former board before the coming into force of this section, but not yet expired or spent, are continued in force and may be enforced or otherwise dealt with by the current board as though they had been made by it.

S.M. 2013, c. 48, s. 7.

Transitional regulations

62.6        The Lieutenant Governor in Council may make regulations respecting any transitional or other problem resulting from the disestablishment of the former board.

S.M. 2013, c. 48, s. 7.

CONSEQUENTIAL AMENDMENTS, REPEAL, C.C.S.M. REFERENCE AND COMING INTO FORCE

63          

NOTE:  This section contained consequential amendments to The Personal Property Security and Consequential Amendments Act, S.M. 1993, c. 14, which are now included in that Act.

Repeal

64          The Farm Machinery and Equipment Act, R.S.M. 1987, c. F40, is repealed.

C.C.S.M. reference

65          This Act may be cited as The Farm Machinery and Equipment Act and referred to as chapter F40 of the Continuing Consolidation of the Statutes of Manitoba.

Coming into force

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

NOTE: S.M. 1998, c. 38, except clause 8(1)(c), came into force by proclamation on July 1, 1999.