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S.M. 2013, c. 45
Bill 35, 3rd Session, 40th Legislature
The Consumer Protection Amendment Act (Compliance and Enforcement Measures)
(Assented to December 5, 2013)
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:
Section 72 is amended
(a) by adding the following after clause (a):
(a.1) the carrying out of inspections, examinations, audits or tests (with or without a complaint) to determine compliance with this Act, the terms and conditions of a licence or an order, and the taking of such action as the director considers appropriate in the circumstances;
(a.2) the receiving, handling and mediation of complaints;
(b) in clause (b), by striking out "the receiving, recording, and investigation of complaints by any persons of" and substituting "the investigation of";
(c) by repealing clause (c); and
(d) by replacing clause (e) with the following:
Subsection 73(4) is amended
(a) in the part before clause (a), by striking out "administration and" and substituting "administration or";
(b) in clause (a), by striking out "under this section" and substituting "as a result of a complaint or as part of an inspection under this Act"; and
The following provisions are repealed:
(a) section 83;
(b) clause 84(1)(d);
The following is added after section 93:
Subsection 97(1) is amended by adding the following after clause (gg):
(hh) respecting the manner in which an order under section 135.6 (compliance) or 135.12 (costs) may be given or served;
(ii) extending the application of section 135.12 (order re costs) to other persons;
(jj) requiring persons to make and maintain records for the purposes of this Act, and specifying the records to be made and maintained and the length of time for which and the location at which those records are to be retained;
The following is added after section 97.3:
The following is added before section 136 as part of Part XVII:
The director, a consumer services officer or a person authorized by the director may require a person to provide records or copies of records the person is required to make and maintain under this Act, for the purpose of
(a) determining compliance with this Act, the terms and conditions of a licence or an order;
(b) verifying the accuracy or completeness of a record or of other information provided to the director, officer or authorized person; or
(c) performing any other duty or function that the director, officer or authorized person considers necessary or advisable in the administration or enforcement of this Act.
A person required to provide records or copies of records under subsection (1) must do so.
Subject to any conditions imposed by the director, a consumer services officer or person authorized by the director (in this section and sections 135.3, 135.4 and 135.5 referred to as an "inspector") may carry out any inspection, examination, audit or test reasonably required to
(a) determine compliance with this Act, the terms and conditions of a licence or an order;
(b) verify the accuracy or completeness of a record or of other information provided to the director or inspector; or
(c) perform any other duty or function that the director or inspector considers necessary or advisable in the administration or enforcement of this Act.
In order to perform a duty or function under subsection (1) (in this section referred to as an "inspection"), the inspector may at any reasonable time, without a warrant, enter
(a) any business premises; or
(b) any other premises or place where the inspector has reasonable grounds to believe that records or property relevant to the administration or enforcement of this Act are kept.
An inspector may not enter premises occupied as a private residence except with the consent of the owner or occupant or with the authority of a warrant obtained in accordance with section 135.4.
An inspector must show his or her identification if requested to do so in the context of an inspection.
The owner of the business carried on at the premises or the person in charge of the place of inspection or having custody or control of the relevant records or property must
(a) produce or make available to the inspector all records and property that the inspector requires for the inspection;
(b) provide any assistance or additional information, including personal information, that the inspector reasonably requires to carry out the inspection; and
(c) upon request, provide written answers to questions asked by the inspector.
In order to inspect records that are maintained electronically at the place of inspection, the inspector may require the owner of the business carried on at the premises or the person in charge of the place of inspection or having custody or control of the relevant records to produce the records in the form of a printout or to produce them in an electronically readable format.
The inspector may use equipment at the place of inspection to make copies of relevant records and may remove the copies from the place of inspection for further examination.
An inspector who is not able to make copies of records at the place of inspection may remove them from the place to make copies. The inspector must make the copies as soon as practicable and return the original records to the person or place from which they were removed.
No person shall hinder, obstruct or interfere with an inspector conducting an inspection under this section.
A document certified by the director or an inspector to be a printout or copy of a record obtained under this Act
(a) is admissible in evidence without proof of the office or signature of the person purporting to have made the certificate; and
(b) has the same probative force as the original record.
A justice, upon being satisfied by information on oath that
(a) an inspector has been refused entry to any premises or place to carry out an inspection under section 135.2; or
(b) there are reasonable grounds to believe that
(i) an inspector would be refused entry to any premises or place to carry out an inspection under section 135.2, or
(ii) if an inspector were to be refused entry to any premises or place to carry out an inspection under section 135.2, delaying the inspection in order to obtain a warrant on the basis of the refusal could be detrimental to the inspection;
may at any time issue a warrant authorizing an inspector or any other person named in the warrant to enter the premises or place and carry out an inspection under section 135.2.
A warrant under this section may be issued upon application without notice.
A person must
(a) make the records that he or she is required to maintain under this Act available, at the place where they are maintained, for inspection, examination or audit by an inspector; and
(b) if the records are not maintained in Manitoba, pay to the minister, upon receiving a statement from the director, the amount charged by the director for expenses incurred in inspecting, examining or auditing the records at the place where they are maintained.
If, in the director's opinion, a person
(a) fails to comply with a provision of this Act, a term or condition of the person's licence or an order; or
(b) makes a false or misleading statement relating to a consumer transaction to which this Act applies, orally, or in a consumer agreement, form, letter or other document, or in any advertisement published by any means;
the director may issue a written order directed to the person.
An order issued by the director under this section must set out the following:
(a) the name of the person to whom the order is directed;
(b) the action the person must take as set out in subsection (3);
(c) the date of the order and the time period within which the person must comply;
(d) the reasons for the order;
(e) a statement that the person has the right to appeal the order.
An order issued by the director under this section may require the person to do any one or more of the following:
(a) comply with a provision of this Act, a term or condition of the person's licence or an order;
(b) apply for licensing or registration;
(c) provide records or information to the director, a consumer services officer or a person authorized by the director to assist the director, officer or authorized person in carrying out their duties and functions under this Act;
(d) cease holding himself or herself out as being licensed or registered or exempt if the person is not licensed, registered or exempt under this Act;
(e) correct a false or misleading statement relating to a consumer transaction to which this Act applies that is made orally or in a consumer agreement, form, letter or other document or in any advertisement published by any means, or bring such a correction to the attention of consumers;
(f) do or refrain from doing one or more other things specified in the order within the specified time period;
(g) any other prescribed thing.
A person to whom a compliance order is directed must comply with it within the time period specified in the order, unless the person appeals the order within the time period specified in subsection 135.8(2).
A copy of an order under section 135.6 must be given to or served on the person as follows:
(a) by delivering a copy of it to the person or to an officer or employee of the person;
(b) by sending a copy of it by registered mail, or by another service that provides the sender with proof of delivery, to the person at the last address known to the director for the person or the person's business;
(c) in any other manner prescribed in the regulations.
An order sent in accordance with clause (1)(b) is deemed to have been received on the date shown on the confirmation of delivery obtained from the Canada Post Corporation or the other service.
Despite the fact that an order is not given or served in accordance with this section, it is sufficiently given or served if it actually came to the attention of the person for whom it was intended.
An order under section 135.6 (compliance order) may be appealed to the court.
To appeal an order, the person to whom the order is directed must file an application with the court within 14 days after a copy of the order is given to or served on the person. The person must provide a copy of the application to the director as soon as practicable after filing it, and the director is a party to the appeal.
The court may
(a) confirm or vary the compliance order; or
(b) allow the appeal, on any terms or conditions the court considers appropriate.
The court may make any order as to the costs of the appeal that it considers appropriate.
The director may issue public reports disclosing details of compliance orders under section 135.6 that have been given or served. This disclosure may include personal information.
If a person to whom a compliance order is directed fails to comply with it and the order has not been appealed (or on an appeal, the appeal has not been allowed), the director may apply to the court for an order directing compliance. An application may be made without notice if the court considers it appropriate in the circumstances.
The court may order compliance on any conditions that the court considers appropriate and may make any other order it considers necessary to ensure compliance.
On application by the director, and on being satisfied that there is reason to believe that a person has done, is doing or is about to do anything that contravenes this Act, the court may issue an injunction ordering the person to refrain from doing that thing.
This section applies to payday lenders, direct sellers, credit grantors and any other prescribed persons.
The director may charge the costs referred to in subsection (3) to a person to whom this section applies in any of the following circumstances:
(a) the director determines that the person has failed to comply with a provision of this Act, a term or condition of the person's licence or an order;
(b) the director is unable to determine whether the person is in compliance because the person
(i) has failed to produce records or property, or make them available for inspection, in the form required by an inspector,
(ii) has failed to answer or provide satisfactory answers to questions asked by an inspector, or
(iii) has failed to provide the assistance or additional information that an inspector reasonably requires to perform the inspection.
In the circumstances described in subsection (2), the director may, by written order, require a person to whom this section applies to pay the following costs:
(a) fees paid to an auditor, private investigator or other expert retained by the director in relation to an inspection;
(b) the cost of any equipment or software required by an inspector or the director to read or interpret the person's records;
(c) the cost of obtaining a warrant;
(d) the costs of legal services provided to the director in relation to an inspection or review of records or practices of the person, including legal services provided by a department or branch of the government.
Section 135.7 applies to the giving or serving of an order made under this section, with necessary changes.
An order made under this section may be appealed to the court. Section 135.8 applies to an order made under this section, with necessary changes.
The costs charged under subsection (2) are a debt owing to the government by that person. The person must pay it within 30 days after being given or served the order unless the person appeals it within the time period specified in subsection 135.8(2).
If the order has not been appealed (or on an appeal, the appeal has not been allowed), the director may file with the court a certificate certifying the amount of the debt. When so filed, the certificate has the same force and effect as a judgment of the court for the recovery of a debt in the amount specified in the certificate plus the cost of filing the certificate.
Subsection 136(2) is replaced with the following:
The following provisions are repealed:
(a) sections 158 to 161 and the centred heading before section 158;
(b) sections 161.1 to 161.5 and the centred heading before section 161.1;
Sections 224 to 227, as enacted by S.M. 2012, c. 14, are repealed.
This Act comes into force on the day it receives royal assent.