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S.M. 1985-86, c. 35
An Act to amend The Amusements Act
(Assented to July 11, 1985)
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:
Cls. 2(a), (d), (k), (p), (q), and (r) rep.
Clauses 2(a), (d), (k), (p), (q) and (r) of The Amusements Act, being chapter A70 of the Revised Statutes, are repealed.
Clause 2(c) of the Act is amended by striking out the words "the film classification board" therein and substituting therefor the words "The Manitoba Film Classification Board".
Clause 2(f) of the Act is amended
(a) by striking out the word "means" in the 1st line thereof and substituting therefor the word "includes"; and
(b) by adding the word "slide" immediately following the word "disc" where it appears in the 2nd and 6th lines thereof.
Clause 2(g) of the Act is amended by striking out the words "or are rented, sold, leased or supplied;" in the 2nd and 3rd lines thereof and substituting therefor the words "distributed, sold, leased, supplied, displayed, advertised, exhibited or presented;".
Section 2 of the Act is further amended by adding thereto, immediately after clause (g) thereof, the following clause:
(g.1) "licence" means a licence issued pursuant to and for the purposes of this Act, and "licensee" means the holder of such a licence;.
Sub-clause 2(h)(ii) of the Act is repealed and the following sub-clause is substituted therefor:
(ii) under Parts III to X, both inclusive, the member of the Executive Council charged by the Lieutenant Governor in Council with the administration of those Parts;.
Clause 2(i) of the Act is amended by striking out the words "syndicate, association, corporation or club" in the 1st line thereof.
Section 2 of the Act is further amended by adding thereto, immediately after clause (i) thereof, the following clause:
(i.1)"person" includes a natural person, corporation, partnership, limited partnership, syndicate, trustee, joint venture, film exchange, and any association of persons whatsoever.
Parts III and IV rep. and sub.
Parts III and IV of the Act are repealed and the following Parts are substituted therefor:
PURPOSES
The purposes of this Part and the following Parts of this Act are
(a) to provide a comprehensive procedure for the classification and regulation of films; and
(b) to provide for the dissemination of information to residents of the province concerning the nature and content of films.
Conflict between Act and other instruments.
Where there is a conflict between the provisions of this Act and any licence, permit, agreement or other instrument or document, whenever made or executed, the provisions of this Act shall prevail.
Any contract made or containing a provision in contravention of this Act is void.
ESTABLISHMENT OF THE MANITOBA FILM CLASSIFICATION BOARD
There is hereby established a board to be known as "The Manitoba Film Classification Board" composed of not fewer than 16 members to be appointed by the Lieutenant Governor in Council.
A member may be appointed to the board on a full or part-time basis.
Unless a member sooner dies, resigns, or is removed from office, each member shall serve for such period as is specified in the order by which the member is appointed and thereafter until a successor is appointed.
Presiding and deputy presiding member.
The Lieutenant Governor in Council shall designate one of the members of the board as the presiding member of the board and another member as the deputy presiding member of the board.
The presiding member, deputy presiding member and each other member of the board shall be paid such remuneration as may be fixed by the Lieutenant Governor in Council and in addition each member may be paid such reasonable out-of-pocket expenses incurred by the member in the performance of duties as a member of the board, as may be approved by the minister.
Validity of acts where a vacancy exists.
Any vacancy in the membership of the board does not affect the validity of any act or thing done by or in the name of the board.
Such employees, as may be necessary to enable the board to perform its duties and functions and to exercise its powers, may be appointed as provided in The Civil Service Act; and the minister may designate employees and such other persons as he deems proper as inspectors under this Part, who shall enforce this Act, other than Part II, and the regulations other than those under that Part.
Members of the board and its employees and persons acting under the instructions of the board or under the authority of this Act or the regulations, are not personally liable for any loss or damage suffered by any person by reason of anything in good faith done, caused, permitted or authorized to be done, or omitted to be done, by them, pursuant to, or in exercise of, or supposed exercise of, the powers given by this Act or the regulations.
POWERS AND DUTIES OF THE BOARD
The board shall perform the duties and functions, and may exercise the powers, imposed upon or granted to it under this Act, or any other Act of the Legislature, and it shall discharge, perform and carry out such other duties and functions as may from time to time be assigned to it by the Lieutenant Governor in Council or by the minister.
Without restricting the generality of section 32, the board may, for the purposes of this Act
(a) administer and enforce this Act and the regulations;
(b) carry out surveys and research programs, and obtain statistics for the purposes of the board;
(c) prescribe, by regulation, forms and the contents thereof for use under this Act;
(d) take such measures, provide such services, disseminate such information, undertake such projects and programs and do all such like things as it may deem advisable in the attainment of the purposes of this Act;
(e) upon application made to it, furnish an applicant therefor with a ruling as to whether or not a proposed or existing action or circumstance would be or is contrary to this Act;
(f) except for the purposes of subsections 35(1) and 41(6) and section 45 extend the time limited for the doing of any act or thing;
(g) subject to guidelines established by regulation made by the Lieutenant Governor in Council, adopt the classification accorded to a film by any other person;
(h) receive and expeditiously investigate, or refer to an appropriate body for investigation, complaints made to it with respect to films, licencees, or the enforcement or operation of this Act, and forthwith report its findings and recommendations to such persons as the board may deem advisable including the complainant and the respondent;
(i) govern, by regulation, the advertising of film; and
(j) classify film, and issue, suspend, revoke and otherwise deal with licences in accordance with the regulations.
Where the board is of the opinion that the public interest will not be injuriously affected thereby, the board may on application or on its own initiative and subject to such terms and conditions as it may impose, by regulation exempt a person, class of persons, film or class of films from all or any part of this Act and from all or any part of the regulations made by the board pursuant to this Act.
The board shall transmit in each year to the minister a report on its operations for the fiscal year ending the 31st day of March of that year.
The minister shall forthwith table the report in the Legislature if it is then in session, and if it is not in session, within 15 days after the opening of the next ensuing session of the Legislature.
Subject to the provisions of The Legislative Library Act the board shall
(a) keep or cause to be kept a record of all applications and proceedings filed with or heard and determined by the board or a member or panel thereof;
(b) keep or cause to be kept and issue upon request and payment of such fees as may be fixed by the board, certified copies of any order or rule made by the board;
(c) have the custody and care of all records and documents filed with the board.
Obtaining copy of record of classification.
Upon payment of the fee prescribed by the regulations, any person may obtain a copy of the record of classification of a film which has been classified by the board pursuant to this Act.
PRACTICE AND PROCEDURE
The board may constitute from its members such panels or committees, and may assign to each panel or committee such duties and functions, as the board may find necessary for the purposes of this Act, and each such panel or committee, when so constituted, has all the powers of the board necessary to carry out those duties and functions.
Any document required to be served upon the board shall be served upon the presiding member, or the deputy presiding member, or as the board may by regulation otherwise provide.
Subject to the provisions of this Part and the regulations, the board may make rules respecting the practice and procedure and the business of the board.
General principles with respect to licences.
In this section "party" means, with respect to a licence only
(a) a person who has applied for or requested the exercise of a power or the doing of any act or thing in connection with the exercise of a power;
(b) a person who has made known to the board an intention to oppose or object to the exercise of a power or the doing of any act or thing in connection with the exercise of a power;
(c) a person who has made known to the board an intention to support an application or request for the exercise of a power or the doing of any act or thing in connection with the exercise of a power.
Where an application is made to the board, or where the board on its own initiative proposes to exercise a power, the board shall give notice to all parties to the application, indicating when and where evidence and submissions relative to the application or the proposed exercise of the power may be submitted.
Before the board refuses an application of a party or exercises a power in a manner that adversely affects a party
(a) it shall give the party an opportunity to submit evidence or submissions relative to the application or the exercise of the power and to cross-examine any witness whose evidence has been submitted by any other party;
(b) where the board has received any evidence, submission or allegation relative to the application or the exercise of the power and contrary to the interest of the party, other than at a hearing of which the party had notice and at which the party was entitled to attend, it shall, subject to the regulations, inform the party of that evidence, submission or allegation in sufficient detail to permit an understanding of it and afford an opportunity of contradicting, answering or explaining it; and
(c) it shall give the party an adequate opportunity of making representations by way of argument to the board.
A party to any proceeding before the board may be represented by counsel at the proceeding; and the counsel has the same rights to submit evidence and submissions and to cross-examine witnesses as the party represented.
Where the board exercises a power so as to affect a party adversely, that party may
(a) within 2 weeks from the date of the publication of the order or decision by which the power was exercised; or
(b) within 2 weeks from the date on which the party was notified of the order or decision by which the power was exercised;
whichever date is the earlier, request the board in writing to furnish a written statement of its order or decision setting out the finding of fact upon which it based its order or decision and the reasons for the order or decision.
Where the board receives a request under subsection (5), it shall furnish the party with the written statement requested within 4 weeks from the date on which it receives the request.
Where, within the time for appeal prescribed by subsection 49(2), a request for a statement is made under subsection (5), the time for appeal is extended by a period equal in length to the period commencing on the date on which the board received the request and ending 7 days after the date on which the statement is furnished to the party making the request.
Where a person has submitted evidence or a submission in any proceeding before the board, any party to the proceeding adversely affected by that evidence or submision may request that person to submit to cross-examination.
Failure to submit to cross-examination.
Where a person fails to comply with a request for cross-examination the board may ignore any evidence or submission submitted by such person in the proceeding in respect of which the request for cross-examination was made.
This section applies only to
(a) the refusal of an application for a licence; or
(b) the refusal of an application for the renewal of a licence; or
(c) the exercise of a power by the board that adversely affects a party.
The board is not bound by the technical rules of evidence, provided however that nothing is admissible in evidence at a hearing relating to the issuance, cancellation or suspension of a licence
(a) that would be inadmissible in the Court of Queen's Bench by reason of any privilege under the law of evidence; or
(b) that is inadmissible by reason of any provision of this or any other Act.
The board may take notice of general, technical or scientific fact lying within its specialized knowledge and upon which it intends to rely, provided however that it shall first have provided the parties before it with a reasonable opportunity to contest it.
The board shall, prior to any hearing, disclose to the parties all material evidence in its possession.
The board shall, within 4 weeks of receipt of any application for classification of film, give notice of its decision to the applicant, stating the reasons for such decision.
The board may, upon application based upon facts not previously known to the board, or of its own initiative, review, rescind, or vary any decision or order made by it.
APPEALS
For the purposes of this Part, except in section 48, "board" includes any person to whom a delegation of powers or duties has been made pursuant to the regulations.
Any person affected by an act or decision of an inspector may appeal to the board in accordance with the provisions of the regulations.
Appeal to a Court of Queen's Bench.
Any person affected by a decision or order of the board, other than a decision or order with respect to the classification of a film, may appeal such decision or order to the Court of Queen's Bench upon the ground that the board
(a) failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction; or
(b) erred in law in making its decision or order, whether or not the error appears on the face of the record.
Subject to the provisions of subsection 41(7), an appeal of a decision or order of the board, shall be made within 30 days from the date on which the decision or order is made, or within such further time, not exceeding 30 days, as a judge of the court may on application, allow.
The taking of an appeal under subsection (1) does not stay the operation of the decision or order appealed against, but a judge of the court may
(a) stay the operation thereof;
(b) prescribe terms and conditions to which the stay may be subject; and
(c) make such interim order as may be necessary to give effect to the purposes of this Act and as to the judge seems just.
The decision of the court is final and binding and there is no appeal therefrom.
The costs of the appeal are in the discretion of the court, and the court may make an order respecting costs in favour of or against the board.
An appeal lies from any decision or order of the board classifying a film, and for that purpose the minister may appoint an appeal board consisting of not less than 5 persons, who are not members of the board, and who shall act upon and decide the appeal in accordance with the provisions of the regulations.
Time for appeal of classification.
An appeal shall be made within 30 days from the date upon which the party appealing receives notice of the decision or order, or within such further time, not exceeding 30 days, as the appeal board may allow.
ENFORCEMENT
Except where otherwise provided by this Act or the regulations, no person shall possess, store, distribute, sell, lease, supply, display, advertise, exhibit or present any film unless
(a) the film has been classified pursuant to the provisions of this Act;
(b) such person is the holder of a licence issued pursuant to the provisions of this Act;
(c) such classification and licence are in good standing and have not been suspended or revoked; and
(d) all fees have been paid as required by the regulations.
Application for classification and licence.
Except where otherwise provided by this Act or the regulations, every person who intends to possess, store, distribute, sell, lease, supply, display, advertise, exhibit or present any film shall first apply to the board for, and obtain, a licence or classification therefor, as provided by the regulations.
Falsification or alteration of documents.
No person shall falsify or unlawfully remove, alter, conceal, destroy or obliterate any licence, form or other document made, issued or employed for the purposes of this Act.
Every person who wilfully
(a) contravenes any provision of this Act or the regulations; or
(b) hinders or misleads a person authorized to carry out an investigation under this Act; or
(c) furnishes false information to a person referred to in clause (b); or
(d) withholds, conceals or destroys anything relevant to the subject matter of an investigation under this Act; or
(e) hinders or prevents the board from effectively carrying out its duties and powers under this Act; or
(f) fails, refuses or neglects to comply with a decision or order of the board; is guilty of an offence, and in addition to any other penalty provided by this Act, is liable, on summary conviction, to a fine not exceeding $5,000.00 and to such costs as may be awarded by the court.
Every person who
(a) does or omits to do anything for the purpose of aiding or abetting another person; or
(b) advises another person;
to commit an offence under this Act, is guilty to an offence and is liable, on summary conviction, to the penalty set out under section 54.
Offence by an officer, etc. of corporation.
Where a corporation is convicted of an offence under this Act, any officer, director or agent of the corporation who directed, authorized, participated in, or acquiesced in the commission of the offence, is party to and is also guilty of an offence and is liable, on summary conviction, to the penalty set out under section 54.
Separate offences and penalties.
In a prosecution under this Act, any number of offences committed by the same person may be included in the one information or offence notice if it contains specifically the time and place of the commission of each offence; and one conviction for several offences, imposing a separate penalty for each offence, may be made under this section.
A person shall be deemed to be in possession of film where the film or documents of title thereto are in the actual custody of that person or are held by another person subject to the control of that person or for or on behalf of that person.
Notwithstanding the provisions of any other Act of the Legislature, a prosecution for an offence under this Act may be commenced at any time within 2 years after the date of the alleged offence and a prosecution for an offence under this Act which relates to or arises out of any misrepresentation or fraud on the part of the accused, may be commenced at any time before the expiration of 2 years after the date on which the misrepresentation or the fraud became known to the board.
Failure to comply with Act or licence.
Where a person fails to comply with this Act or with the provisions of any licence, the board may apply to a judge of the Court of Queen's Bench for an order requiring the person to comply with this Act or the provisions of the licence or both; and the judge may also make such further order, including an order enjoining any person from doing any act or thing, as may be necessary to give effect to the purposes of this Act or the provisions of the licence, or both, and as to the judge seems just.
An application for an order under subsection (1) may be made ex parte where the judge is satisfied that such is just and necessary under the circumstances, in which event any order made shall be of an interim nature.
Every inspector, while exercising any powers or performing any duties under this Act or the regulations shall, upon request therefor, produce a certificate of appointment containing a photograph of the inspector.
REGULATIONS
For the purpose of carrying out the provisions of this Act according to their intent, the board may make such regulations as are ancillary thereto and are not inconsistent therewith nor inconsistent with regulations made by the Lieutenant Governor in Council; and every regulation 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 board may make regulations
(a) governing applications for licences and renewals thereof, and prescribing the requirements to be met by applicants therefor;
(b) providing for the recording of proceedings of the board;
(c) providing for service of documents upon the board for the purposes of section 39;
(d) prescribing forms and the contents thereof for use under this Act;
(e) exempting persons, classes of persons, and films for the purposes of section 34;
(f) governing the advertising of film;
(g) providing for transitional provisions upon the coming into force of this Act; and
(h) generally, for the purpose of giving effect to the purposes of this Act.
Lieutenant Governor in Council regulations.
For the purpose of carrying out the provisions of this Act according to their intent, the Lieutenant Governor in Council may make such regulations as are ancillary thereto and are not inconsistent therewith; and every regulation 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
(a) establishing classifications and criteria for classification of film;
(b) respecting the licensing of film exchanges;
(c) exempting a person, class of persons, film or class of films from all or any part of this Act or any regulation made thereunder;
(d) defining any word or expression used in this Act but not defined herein;
(e) prescribing fees;
(f) establishing rules of practice and procedure for the purposes of Parts VI and VII;
(g) establishing guidelines for the purpose of clause 33(g);
(h) respecting the publication by the board of regulatory agenda;
(i) determining and fixing the amount to be levied annually against each class of licencee;
(j) prescribing matters to be considered by the board in the consideration of any application;
(k) providing for appeals from an act or decision of an inspector for the purposes of section 48;
(l) providing for the delegation to any person of any of the powers or duties of the board;
(m) generally, for the purpose of giving effect to the purposes of this Act.
Where there is a conflict between a provision of a regulation made under section 62 and a provision of a regulation made under section 63, the provision of the regulation made under section 63 prevails.
Application of regulation to part of province.
A regulation made under this Act may be made to apply only to any specified area or areas of the province.
GENERAL
Nothing in this Act prevents a natural person from producing or possessing film for the personal, private and non-commercial use of that person.
Nothing in this Act applies to contracts for or possession of film solely for delivery through, or beyond the boundaries of, the province.
Ombudsman and The Manitoba Human Rights Commission.
The Ombudsman and The Manitoba Human Rights Commission, or any person employed thereby and so instructed, has free access at any time to records of the board, and may require such records, together with such statistics, statements and reports as appear reasonable and necessary, to be furnished from time to time.
Information obtained by or furnished to the board or any member, employee or agent of the board, shall not be communicated by the board or member, employee or agent other than for the purposes of or in connection with this Act or as required by law.
No person shall sell, barter or exchange for anything any ticket of admission to a place of amusement for a price or consideration greater than that paid or given therefor to the owner of the place of amusement to which it is an admission.
The provisions of this Act shall be deemed severable each from the others, and if any of the provisions is found to be beyond the powers of the Legislature, the remaining provisions shall not solely by reason thereof also be deemed to be beyond its powers.
This Act comes into force on a day fixed by proclamation.
Note: This Act was proclaimed in force April 1, 1986. See Manitoba Gazette No. 15 April 12, 1986, page 658.