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The Hearing Aid Act
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This version is current as of June 27, 2017.
It has been in effect since June 16, 2011.

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C.C.S.M. c. H38

The Hearing Aid Act

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

Definitions

1           In this Act

"board" means The Hearing Aid Board continued under this Act; (« régie »)

"Consumer Protection Office" means the Consumer Protection Office continued under The Consumer Protection Act; (« Office de la protection du consommateur »)

"director" means the director of the Consumer Protection Office; (« directeur »)

"hearing aid" means any wearable instrument or device designed for or offered for the purpose of aiding or compensating for impaired human hearing and any parts, attachments or accessories for the instrument or device except batteries and cords; (« appareil auditif »)

"hearing aid dealer" means any person engaged in

(a) testing or measuring human hearing by audiometer or any other means for the purpose of selecting, adapting, recommending, or selling hearing aids, or

(b) selling or offering for sale hearing aids, or

(c) making impressions for earmolds to be used in connection with hearing aids; (« Audio-prothésiste »)

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

"sale" means a transfer of title, sale under a security agreement, as defined in The Personal Property Security Act, lease, hire purchase, or any other transaction whereby a person disposes of, and another person acquires a hearing aid, but it does not include any sale of a hearing aid which is intended for resale by a hearing aid dealer in the course of his or her business. (« vente »)

S.M. 1993, c. 14, s. 82; S.M. 2002, c. 16, s. 2; S.M. 2011, c. 35, s. 18.

Hearing Aid Board

2(1)        There is hereby continued, under the control and direction of the minister, the board known as "The Hearing Aid Board".

Composition of board

2(2)        The board shall consist of

(a) the Deputy Minister of Health or such other person as may be designated by the Lieutenant Governor in Council, who shall serve as chair;

(b) the director or his or her appointee, who shall serve as secretary;

(c) a qualified otolaryngologist nominated by the University of Manitoba, or in the absence of such nomination, a person who is considered by the minister to be equally qualified; and

(d) four persons appointed by the minister, at least one of whom shall be a hearing aid dealer.

Term of office

2(3)        Except as otherwise designated by the minister, the members of the board, other than the chair and secretary, shall serve for a period of three years and are eligible for re-appointment.

Remuneration

2(4)        The members of the board, other than members who are civil servants, shall be paid such remuneration and allowances as may be fixed by the Lieutenant Governor in Council.

Quorum

2(5)        A quorum of the board shall consist of four members, one of whom shall be the chair or the secretary.

S.M. 2002, c. 16, s. 3.

Powers

3           The board may

(a) regulate and promote the education of hearing aid dealers and for that purpose may utilize such vocational or educational institutions as it considers advisable;

(b) appoint an examining committee of competent persons and confer on that committee whatever powers and duties with respect to examinations that the board considers necessary and desirable;

(c) certify hearing aid dealers to perform specific types of services and prescribe

(i) the form and content of any document that shall serve as evidence of certification; and

(ii) the period within which the certification shall be renewed;

(d) prescribe the qualifications of applicants for certification as hearing aid dealers;

(e) prescribe examination fees, certification fees and licence fees;

(f) prescribe standard testing procedures for the uniform calibration of audiometers;

(g) prescribe requirements for the maintenance of records to be kept by hearing aid dealers;

(h) prescribe rules of conduct and advertising in the sale or servicing of hearing aids;

(i) at its discretion, evaluate any hearing aid as to performance, price, construction or serviceability and publicize its findings; or

(j) withdraw certification of any hearing aid dealer who fails to satisfy any requirements prescribed by the board.

Authorized services

4           A hearing aid dealer certification shall set out the services the dealer is authorized to perform which may be one or more of the following

(a) the conduct of tests in pure-tone audiometry, including air-conduction testing and bone-conduction testing;

(b) the conduct of tests by live voice or recorded-voice speech audiometry, including speech-reception threshold testing and speech-discrimination testing;

(c) masking, where indicated;

(d) recording and evaluating audiograms and speech audiometry to determine proper selection and adaptation of a hearing aid; and

(e) taking earmold impressions and fitting hearing aids.

S.M. 2002, c. 16, s. 4.

Restrictions on issuance of licence

5(1)        Where a person is certified as a hearing aid dealer the director shall issue a licence to that person to engage in the practice of a hearing aid dealer if that person files with the director as part of the application for a licence a bond in such amount, class and form as the director may require.

Term of licence

5(2)        A licence issued under subsection (1) is valid for a period of one year but may be renewed annually subject to the provisions of this Act.

Address for service

5(3)        Every licence shall state an address for service in Manitoba and any notice given pursuant to this Act or the regulations made hereunder, shall for all purposes be deemed to be sufficiently served if delivered or sent by registered mail to the licensee at the address for service stated in the licence, unless the licensee has notified the director in writing of a change of address for service, in which case the notice shall be sufficiently served if delivered to or sent by registered mail to the licensee at the changed address.

S.M. 2002, c. 16, s. 5.

Investigation of complaints

6(1)        The director may receive, record and investigate complaints by any person of suspected breaches of this Act or any regulation made thereunder.

Access to documents

6(2)        For the purpose of investigating a specific complaint under this Act, the director or any person authorized by the director for the purpose, shall have access during normal business hours to

(a) the business premises of any person carrying on business to which this Act applies, where there are reasonable and probable grounds to believe that those premises contain specific documents, correspondence and records relevant to the complaint; and

(b) the specific documents, correspondence and records in those premises which are relevant to the complaint;

and the director or person may make copies of, or take extracts from, the documents, correspondence and records.

Information confidential

6(3)        Except for the purposes of a prosecution under this Act, or in any court proceedings, or for the purpose of the administration and enforcement of this Act, neither the director nor any authorized person shall

(a) knowingly communicate, or allow to be communicated, to any person any information obtained by or on behalf of the director under this section; or

(b) knowingly allow any person to inspect, or to have access to, any copy of any book, record, document, file, correspondence, or other record obtained by, or on behalf of, the director under this section.

Exception

6(4)        Subsection (3) does not prohibit

(a) the communication of information by the director to persons charged with the administration of any statutes of Canada or of any other province that relate to the subject matter of this Act; or

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

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

Authority for access

6(5)        Where a person refuses to grant access to business premises or refuses to produce documents, correspondence or records for purposes of subsection (2), the director or any person authorized by the director for the purpose may apply to a justice for an order

(a) granting the director or person access to the business premises;

(b) granting the director or person access to specific documents, correspondence and records in those premises which are relevant to the complaint; and

(c) authorizing the director or person to make copies of, or take extracts from, the documents, correspondence and records.

Where order may be issued

6(6)        A justice may, on an ex parte application where necessary, issue the order referred to in subsection (5) if the justice is satisfied that

(a) there are reasonable and probable grounds to believe that the business premises in question contain specific documents, correspondence or records relevant to the complaint; and

(b) the authority for access is reasonable and necessary for purposes of investigating the complaint.

Cancellation of licence

7(1)        Where it is determined by the board or by the director that there has been a breach of this Act or The Consumer Protection Act, or of any regulation under these Acts by a hearing aid dealer or any other person or where the board has suspended or cancelled certification of a hearing aid dealer, the director may

(a) cancel the licence of the hearing aid dealer or person who has committed the breach; or

(b) prosecute the offender; or

(c) cancel the licence and prosecute the offender.

Reference to board

7(2)        Where it appears to the director or it is brought to his or her attention that there may have been a failure to comply with the requirements of competence or conduct prescribed by the board, the director shall refer the matter to the board for consideration and such action as may be deemed appropriate to correct the failure.

S.M. 2002, c. 16, s. 2.

Review of complaint by board

8(1)        Upon review of any complaint referred to it by the director, the board may, in its discretion after investigation and hearing such evidence as the parties may wish to present to the board

(a) dismiss the complaint; or

(b) reprimand the person against whom the complaint was made; or

(c) suspend the certification of the person against whom the complaint was made for such period as the board thinks fit; or

(d) cancel the certification of the person against whom the complaint was made; and

if delivery of a hearing aid was made within the preceding three months, and the board determines that the hearing aid is inadequate or for any reason fails to perform in accordance with the reasonable expectations of the buyer that are based on the judgment or recommendation or promise of the hearing aid dealer, the board may

(e) require the hearing aid dealer to make such adjustment as the board considers fair and equitable; or

(f) cancel the transaction whereby the hearing aid was acquired by the buyer and require the hearing aid dealer to make full restitution of all moneys paid and other consideration given by the buyer less an allowance to the dealer not exceeding $25.

Forfeiture of bond

8(2)        Where any amount required to be paid under subsection (1), is unpaid within

(a) 14 calendar days after the expiration of the time allowed for appeal of a decision of the board; or

(b) 14 calendar days after an appeal from the decision of the board has been denied;

the director may forfeit the bond of the dealer concerned and pay the amount from the proceeds thereof.

S.M. 2002, c. 16, s. 6.

Written reasons for cancellation, etc.

9           If the director refuses to grant or renew a licence or cancels a licence under section 7, he or she shall give the applicant or licensee written reasons.

S.M. 2002, c. 16, s. 7.

Appeal

10(1)       An appeal lies from any decision or order of the board or the director to a judge of the Court of Queen's Bench.

Trial de novo

10(2)       The hearing of an appeal under subsection (1) shall be a trial de novo.

Time for making appeal

11(1)       An appeal under section 10 shall be filed with the appropriate court within 14 days from the date of service on the hearing aid dealer of the decision or order appealed against.

Service of notice of appeal

11(2)       Every notice of appeal from a decision of the director or the board shall be served on the director or the board as the case may be within seven days after the filing thereof.

Practice without licence prohibited

12(1)       Except in accordance with and to the extent specifically authorized in a certification and a valid licence issued under this Act, no person shall

(a) engage in the practice of a hearing aid dealer; or

(b) display a sign or in any way, advertise, represent, or hold himself or herself out as a person engaged in the practice of a hearing aid dealer.

Sale of hearing aid to minor

12(2)       Notwithstanding any other provisions of this Act, no person shall make a sale of a hearing aid to any person under the age of 18 years unless that person has, within the immediately preceding six months, obtained a written recommendation

(a) from a duly qualified medical practitioner specializing in otolaryngology; or

(b) from a fully qualified and certified audiologist.

Exception

12(3)       Where under subsection (2) a person sells a hearing aid to another person under the age of 18 years it is not necessary to obtain a recommendation as required under that subsection to sell an identical replacement hearing aid to that other person, if the sale is being made within one year from the date of the earlier sale.

S.M. 2002, c. 16, s. 8.

Penalties

13(1)       Any person who contravenes any provision of this Act other than through inadvertence is guilty of an offence and is liable, upon summary conviction

(a) where a person is an individual

(i) for a first offence, to a fine of not less than $50. and not more than $500., and, in default, to imprisonment for not more than 30 days; and

(ii) for a second and subsequent offence committed within two years of the date of conviction for the first offence, to a fine of not less than $100. and not more than $1,000. and, in default, to imprisonment for not more than 60 days;

(b) where the person is a corporation

(i) for a first offence to a fine of not less than $100. and not more than $2,000.; and

(ii) for a second and each subsequent offence committed within one year of the date of conviction for the first offence, to a fine of not less than $200. and not more than $5,000.

Reference to director

13(2)       Where a person is charged with an offence under this Act and the person alleges that the offence occurred through inadvertence of the person or where the person is a corporation; through the inadvertence of its servants or agents, the court may, before adjudicating thereon, refer the matter to the director who shall investigate the matter and report his or her findings to the court.

S.M. 2002, c. 16, s. 2.

Exemption from liability

14          No action lies or shall be instituted against any employee of the government or member of the board to recover any loss or damage alleged to have been suffered by any person as a consequence of any act or omission of the employee or member in connection with the carrying out of his or her powers and duties given under this Act or the regulations unless the act or omission resulted from the negligence of the employee or member.

S.M. 2002, c. 16, s. 2.

Exemption from licensing

15          Persons licensed under this Act are exempt from the licensing requirements of The Consumer Protection Act.

Regulations

16          For the purpose of carrying out the provisions of this Act according to their intent, the Lieutenant Governor in Council may make such regulations and orders as are ancillary thereto and are not inconsistent therewith; and every regulation or order made under, and in accordance with the authority granted by, this section has the force of law; and, without restricting the generality of the foregoing, the Lieutenant Governor in Council may make regulations and orders

(a) respecting those matters and things set out in sections 3, 4 and 8 of this Act;

(b) respecting such other matters that the Lieutenant Governor in Council may deem necessary for the purpose of carrying out the provisions of this Act.

Medical practitioner not affected

17(1)       This Act does not apply to a medical practitioner entitled to practise in Manitoba and acting in that capacity.

Persons exempt from licensing

17(2)       A licence under this Act is not required by

(a) a person providing the services of an audiologist in the course of his or her employment with the Government of Manitoba or the Government of Canada, or any agency of those governments; or

(b) a person engaged in the practice of measuring human hearing for the purpose of selection of hearing aids, if that person is not directly or indirectly engaged in selling hearing aids or accessories on his or her own or for his or her employer.

S.M. 2002, c. 16, s. 2.