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Consumer Protection Act

 Consumer Protection Act

 

CHAPTER 92

OF THE

REVISED STATUTES, 1989

 

amended 1994, c. 16; 1998, c. 8, ss. 22-25; 1999, c. 4, ss. 3-9; 2001, c. 40


NOTE - This electronic version of this statute is provided by the Office of the Legislative Counsel for your convenience and personal use only and may not be copied for the purpose of resale in this or any other form. Formatting of this electronic version may differ from the official, printed version. Where accuracy is critical, please consult official sources.


 

An Act to Provide for the
Fair Disclosure of the Cost of
Credit and for the Protection
of Buyers of Consumer Goods

 

Short title

1 This Act may be cited as the Consumer Protection Act. R.S., c. 92, s. 1.

Interpretation

2 In this Act,

(a) "borrower" means a person who receives credit;

(b) "buyer" means a person who purchases goods or services on credit and includes his agent, but does not include a person of a class or classes to whom this Act is declared by the regulations not to apply;

(c) "cost of borrowing" means

(i) when used in relation to variable credit, the charges that the borrower is required to pay monthly or periodically on the unpaid balance from time to time, and

(ii) when used in relation to a form of credit, other than variable credit, the amount by which the total sum that the borrower is required to pay if the payments required are made as they become due exceeds

(A) in the case of credit given by the advancement of money, the aggregate of the sum actually received in cash by the borrower and by any person on his behalf, the sum remaining unpaid under a previous extension of credit, in an amount determined under Section 19, that the borrower and lender agree is to be consolidated with the credit then being extended, official fees and premiums for insurance paid or payable by the lender at the request of the borrower, or

(B) in the case of a sale of goods or services, the aggregate of the cash price of the goods or services, the sum remaining unpaid under a previous extension of credit in an amount determined under Section 19, that the buyer and seller agree is to be consolidated with the credit then being extended, official fees and premiums for insurance paid or payable by the seller at the request of the buyer, less the sums, if any, credited as down payment or in respect of a trade-in or in respect of any other matter;

(d) "credit" means credit for which a borrower is required to pay and that is

(i) given under an agreement between a seller and a buyer to purchase goods or services by which all or part of the purchase price is payable after the agreement is entered into, or

(ii) given by the advancement of money,

but does not include credit extended

(iii) on the security of a mortgage of real property,

(iv) in respect of the sale of goods intended for resale, or

(v) for industrial or business purposes of the borrower;

(e) repealed 1998, c. 8, s. 22.

(f) "goods" includes tokens, coupons or other documents or things issued or sold by a seller to a buyer that are exchangeable or redeemable for goods or services;

(g) "insurance" means insurance on the life or health of a borrower or buyer, or on property charged to secure payment of the indebtedness of a borrower or buyer to a lender or seller;

(h) "lender" means a person who extends credit;

(i) "Minister" means the Minister of Consumer Affairs;

(j) "official fees" means fees paid or payable to a public official in the Province for the filing or registration of an instrument relating to a credit transaction;

(k) "person" means an individual, an association of individuals, a partnership or a corporation and includes an agent of any of them;

(l) "Registrar" means the Registrar of Credit;

(m) "regulations" means regulations made under this Act;

(n) "seller" means a person who is in the business of selling goods or services to buyers and includes his agent, but does not include a person or class of persons to whom this Act is by the regulations declared not to apply;

(o) "trade-in" means consideration given by a buyer in a form other than money or an obligation to pay money;

(p) "variable credit" means credit made available under an agreement whereby the lender agrees to make credit available to be used from time to time, at the option of the borrower, and, without limiting the generality of the foregoing, includes credit arrangements commonly known as revolving credit accounts, budget accounts, cyclical accounts and other arrangements of a similar nature. R.S., c. 92, s. 2; 1998, c. 8, s. 22; 1999, c. 4, s. 3.

Registrar of Credit

3 (1) The Director of Consumer Services under the Consumer Services Act shall be the Registrar of Credit.

(2) The Governor in Council may appoint a person to be Deputy Registrar of Credit who in the absence or incapacity of the Registrar or when the office of Registrar is vacant shall perform the functions and may exercise all the powers of the Registrar. R.S., c. 92, s. 3.

Functions of Registrar

4 It is the function of the Registrar and he has power to

(a) investigate complaints regarding credit granting and persons engaged in business as lenders;

(b) conduct studies, inquiries and surveys for the purpose of obtaining information as to who are lenders in the Province, concerning their methods and practices of carrying on business, and to keep himself informed of developments or changes in the business of credit granting;

(c) consult with and co-operate with lenders and other interested persons and organizations to assist in the attainment of the purposes of this Act;

(d) disseminate information respecting methods of obtaining or granting credit, the practices of lenders, the costs of borrowing, the facilities available for obtaining loans or credit, and such other information as he considers desirable for the purpose of creating an informed public;

(e) perform the duties and exercise the powers imposed or conferred upon him by this Act or the regulations;

(f) perform such other functions as are prescribed by the regulations or by the Governor in Council. R.S., c. 92, s. 4.

Public Inquiries Act

5 For the purpose of exercising his functions under this Act, the Registrar has all the powers, privileges and immunities of a commissioner appointed under the Public Inquiries Act. R.S., c. 92, s. 5.

Powers

6 The Registrar or a person authorized by him for the purpose may enter the premises of a lender or any person who he has reasonable grounds to believe is carrying on the business of a lender and inspect the records and files of the lender or person and make copies of or take extracts from any books, records or documents on those files. R.S., c. 92, s. 6.

Staff

7 To assist the Registrar in performing his functions there shall be appointed in accordance with the Civil Service Act such auditors, accountants, inspectors, clerks and other persons as are necessary. R.S., c. 92, s. 7.

Professionals

8 With the approval of the Governor in Council the Registrar may engage solicitors, accountants, actuaries, and other professionally or technically qualified persons. R.S., c. 92, s. 8.

Advisory councils

9 (1) The Governor in Council may appoint advisory councils to assist and advise the Registrar in the performance of his functions.

(2) Separate advisory councils may be appointed to assist and advise respecting transactions relating to different types of money lending and credit granting.

(3) A provincial advisory council may be appointed from among the members of separate advisory councils to assist in co-ordinating the recommendations of separate councils.

(4) Each advisory council shall consist of such number of persons as the Governor in Council determines. R.S., c. 92, s. 9.

Discrimination prohibited

10 (1) In this Section,

(a) "borrower" means a natural person who receives credit;

(b) "buyer" means a natural person who purchases goods or services on credit;

(c) "credit" means credit for which a borrower is required to pay and that is

(i) given under an agreement between a seller and a buyer to purchase goods or services by which all or part of the purchase price is payable after the agreement is entered into, or

(ii) given by advancement of money;

(d) "goods" includes tokens, coupons or other documents or things issued or sold by a seller to a buyer that are exchangeable or redeemable for goods or services;

(e) "lender" means a person who as a business or in the course of business extends credit and includes his agent;

(f) "seller" means a person who is in the business of selling goods or services to buyers and includes his agent.

(2) No lender or seller shall refuse to lend or sell to a borrower or buyer, or discriminate against a borrower or buyer, solely because the borrower or buyer is a woman.

(3) Subsection (2) applies whether the woman is married or not. R.S., c. 92, s. 10.

Permit

11 (1) No person shall carry on business as a lender unless that person holds a valid permit under this Act.

(2) repealed 1999, c. 4, s. 4.

(3) No person shall publish or cause to be published any statement or representation that he holds a permit under this Act. R.S., c. 92, s. 11; 1999, c. 4, s. 4.

Duty to issue a permit

12 (1) Upon receipt of an application in the prescribed form from an applicant who satisfies the requirements of the regulations the Registrar shall issue a permit.

(2) Unless previously terminated or cancelled, every permit issued pursuant to subsection (1) expires three years from the date of its issue.

(3) The Registrar shall not refuse to issue a permit to a lender or cancel the permit of a lender without giving the lender an opportunity to be heard. R.S., c. 92, s. 12; 1999, c. 4, s. 5.

Suspension or cancellation

13 The Registrar may suspend or cancel the permit of any person

(a) for the breach of a term or condition upon which the permit was granted;

(b) where he has reason to believe that the person has violated or failed to comply with any provision of this Act or the regulations or an order or direction given under this Act or the regulations; or

(c) where the Registrar considers it to be in the public interest to do so. R.S., c. 92, s. 13; 1999, c. 4, s. 6.

Procedure for cancellation

14 (1) Where the Registrar believes that a lender who holds a permit under this Act is not carrying on business in the Province, the Registrar may send to the lender a registered letter inquiring whether the lender is carrying on business in the Province and stating that if an answer to the letter is not received within one month from the date of the letter the lender's permit will be cancelled and notice of cancellation will be published in the Royal Gazette.

(2) If the Registrar either receives an answer from the lender to the effect that he is not carrying on business as a lender or does not within one month after sending the letter receive an answer to it the Registrar may cancel the permit of the lender and publish notice of the cancellation in the Royal Gazette.

(3) The Registrar may cancel the permit of a lender when he is satisfied that the lender has died.

(4) The Registrar may cancel the permit of any lender that is a company if he is satisfied that the company has been dissolved or has been struck off the register under the Corporations Registration Act.

(5) The Registrar may cancel the permit of any lender who has become bankrupt. R.S., c. 92, s. 14; 1999, c. 4, s. 7.

Address for service

15 (1) Every applicant for a permit shall state in the application an address for service in the Province and all notices under this Act or the regulations required or permitted to be given to him are sufficiently given or served for all purposes if delivered or sent by registered mail to the latest address for service so stated.

(2) Every lender who holds a permit under this Act shall within five days notify the Registrar in writing of

(a) any change in his address for service; and

(b) any change in the membership in the case of a partnership. R.S., c. 92, s. 15; 1999, c. 4, s. 8.

Misleading statements

16 Where any person registered under this Act is making false, misleading or deceptive statements relating to the extension of credit in any advertisement, circular, pamphlet or similar material, the Registrar may order the immediate cessation of the use of such material. R.S., c. 92, s. 16.

Statement for borrower

17 (1) Except as provided in subsection (3), every lender shall furnish to the borrower before extending the credit a clear statement in writing showing

(a) the sum expressed as one sum in dollars and cents, of

(i) in the case of credit given by the advancement of money, the sum actually received in cash by the borrower and by any person on his behalf, or

(ii) in the case of a sale of goods or services, the cash price of the goods or services;

(b) where the lender is a seller, the sums, if any, to be credited as a down payment or in respect of a trade-in or in respect of any other matter;

(c) where the lender is a seller, the sum that is the difference between the sum stated under subclause (ii) of clause (a) and the sums stated under clause (b);

(d) the sum remaining unpaid under a previous extension of credit, in an amount determined under Section 19, that the borrower and lender agree is to be consolidated with the extension of credit of which the statement is given;

(e) the sum of official fees and premiums for insurance paid or payable by the lender at the request of the borrower;

(f) the aggregate

(i) where the lender is a seller, of the sums stated under clauses (c), (d) and (e), or

(ii) where the lender is not a seller, of the sums stated under subclause (i) of clause (a) and under clauses (d) and (e);

(g) the cost of borrowing expressed as one sum in dollars and cents;

(h) the percentage that the cost of borrowing bears to the sum stated

(i) under subclause (ii) of clause (f) where the lender is not a seller, and

(ii) under subclause (i) of clause (f) where the lender is a seller,

expressed as an annual rate on the unpaid balance of the obligation from time to time, which percentage shall be calculated and expressed in the manner prescribed in the regulations; and

(i) the basis upon which additional charges are to be made in the event of default.

(2) In addition to the statement required by subsection (1), where a lender and borrower agree that the rate of interest is subject to variation, the lender shall within thirty days of any change in the rate of interest send to the borrower such statement in writing in such form and containing such information as is prescribed by the regulations.

(3) A lender extending variable credit shall

(a) before extending variable credit, furnish the borrower with a clear statement in writing setting forth the cost of borrowing

(i) as an annual percentage or a scale of annual percentages, calculated and expressed in the manner prescribed by the regulations, that the borrower is required to pay monthly or periodically on the unpaid balance, subject to a minimum dollars and cents charge, if any, and

(ii) expressed in dollars and cents in a schedule of amounts of outstanding balances and the corresponding charges for the cost of borrowing;

(b) not less frequently than every five weeks during the extension of credit, furnish the borrower with a clear statement in writing showing in respect of the period covered by the statement

(i) the outstanding balance in the account of the borrower at the beginning of the period,

(ii) the amount of each extension of credit to the borrower during the period and the date thereof,

(iii) the total sum received from or credited to the account of the borrower during the period,

(iv) the cost of borrowing, expressed as one sum in dollars and cents, charged during the period,

(v) the outstanding balance in the account of the borrower at the end of the period,

(vi) the statement referred to in clause (a).

(4) Where anything required to be disclosed pursuant to subsection (3) is varied, the lender shall at least thirty days before the variation is effective send to the borrower a notice of the variation.

(5) The statement required to be furnished under subsection (1) or clause (a) of subsection (3) may be contained in the principal document or instrument relating to the credit transaction or in a separate document.

(6) Notwithstanding any other provision of this Section, where credit is extended and no time or date for payment or repayment is specified at the time the credit is extended the cost of borrowing may be disclosed as a statement of the percentage rate for one year on the credit extended and as the amount in dollars and cents that would be payable by the person to whom the credit was extended if payment or repayment was required to be made one year after the credit was extended.

(7) and (8) repealed 1998, c. 8, s. 23.

R.S., c. 92, s. 17; 1998, c. 8, s. 23.

Maximum rate

18 (1) A borrower is not liable to pay a lender as the cost of borrowing any sum or at a rate that exceeds the sum or rate disclosed in a statement given pursuant to Section 17 by more than the tolerances, if any, permitted by the regulations.

(2) Nothing in this Act shall have the effect of depriving a lender of or interfering with the right of a lender to collect from a borrower

(a) the principal of a debt, loan or credit; or

(b) the cost of borrowing thereon at the lesser of the sum or rate shown in a statement required by Section 17. R.S., c. 92, s. 18.

Rights on early payment

19 Where a sum remaining to be paid under an agreement for credit is paid in full before the term of the agreement has expired

(a) the borrower is entitled to a rebate in respect of the cost of borrowing; and

(b) the lender is entitled to a part of the cost of borrowing,

in an amount determined in the manner prescribed by the regulations. R.S., c. 92, s. 19.

Advertising requirements

20 (1) No lender shall publish or cause to be published whether in print or by radio or television broadcast or otherwise, any representation of a charge for credit that does not disclose the full cost of borrowing, stated as an annual percentage rate, expressed in the manner required by Section 17.

(2) Unless permitted by the regulations, where a lender represents or causes to be represented in a printing, broadcast or other publication any terms of a credit transaction other than a charge for credit, the lender shall also include or cause to be included all other relevant terms of the credit transaction including

(a) the sum to be actually received in cash by the borrower or the actual cash price of the goods;

(b) the amount of the down payment, if any;

(c) the amount of each instalment; and

(d) the number of instalments required to repay the total indebtedness including the cost of borrowing.

(3) No lender shall represent his charge for credit or cause such charge to be represented unless the representation includes the full cost of borrowing and is expressed in the manner required by Section 17. R.S., c. 92, s. 20.

Contracting out

21 This Act applies notwithstanding any agreement or waiver to the contrary. R.S., c. 92, s. 21.

21A to 21U not proclaimed in force

Interpretation of Sections 21V to 21AF

21V In Sections 21V to 21AF,

(a) "consumer" means an individual who receives or has the right to receive goods or services from a supplier as a result of a purchase, lease or other arrangement;

(b) "consumer transaction" means the supply of goods or services by a supplier to a consumer as a result of a purchase, lease or other arrangement;

(c) "internet" means the decentralized global network connecting networks of computers and similar devices to each other for the electronic exchange of information using standardized communication protocols;

(d) "internet sales contract" means a consumer transaction formed by text-based internet communications;

(e) "services" means any services offered or provided primarily for personal, family or household purposes;

(f) "supplier" means a person who, in the course of the person's business, provides goods or services to consumers. 2001, c. 40, s. 1.

Application of Sections 21X to 21AF

21W Sections 21X to 21AF do not apply to

(a) goods and services that are immediately downloaded or accessed using the internet; or

(b) classes of goods and services that are excluded under the regulations. 2001, c. 40, s. 1.

Disclosure of information respecting internet sales contract

21X Before entering into an internet sales contract with a consumer, a supplier shall disclose the information prescribed by the regulations. 2001, c. 40, s. 1.

Express opportunity to accept or decline internet sales contract

21Y A supplier shall provide the consumer with an express opportunity to accept or decline the internet sales contract and to correct errors immediately before entering into it. 2001, c. 40, s. 1.

Copy of internet sales contract

21Z (1) A supplier shall provide a consumer who enters into an internet sales contract with a copy of the contract in writing or electronic form within fifteen days after the contract is entered into.

(2) A copy of the internet sales contract shall include the requirements prescribed by the regulations.

(3) For the purposes of subsection (1), a supplier is considered to have provided a consumer with a copy of the internet sales contract if the copy is sent or otherwise provided in accordance with the regulations. 2001, c. 40, s. 1.

Cancellation of internet sales contract

21AA A consumer may cancel an internet sales contract under the circumstances described in the regulations. 2001, c. 40, s. 1.

Effect of cancellation under Section 21AA

21AB (1) A cancellation of an internet sales contract under Section 21AA operates to cancel the contract as if the contract had never existed.

(2) A cancellation of an internet sales contract under Section 21AA also operates to cancel

(a) any related consumer transaction;

(b) any guarantee given in respect of consideration payable under the contract; and

(c) any security given by a consumer or a guarantor in respect of consideration payable under the contract,

as if the contract had never existed.

(3) Where credit is extended or arranged by the supplier, the credit contract is conditional on the internet sales contract whether or not the credit contract is a part of or attached to the internet sales contract and, where the internet sales contract is cancelled, that cancellation has the effect of cancelling the credit contract as if the internet sales contract had never existed. 2001, c. 40, s. 1.

Duty of supplier upon cancellation under Section 21AA

21AC (1) Where an internet sales contract is cancelled under Section 21AA, a supplier shall, within fifteen days from the date of cancellation, refund to a consumer all consideration paid by the consumer under the contract and any related consumer transaction, whether paid to the supplier or another person.

(2) Where goods are delivered to a consumer under an internet sales contract that is cancelled under Section 21AA, the consumer shall, within fifteen days from the date of cancellation or delivery of the goods, whichever is later, return the goods to the supplier unused and in the same condition in which they were delivered.

(3) A consumer may return the goods under subsection (2) by any method that provides the consumer with confirmation of delivery to the supplier.

(4) The supplier shall accept a return of goods by a consumer under subsection (2).

(5) The supplier is responsible for the reasonable cost of returning goods under subsection (2).

(6) Goods that are returned by the consumer under subsection (2) otherwise than by personal delivery are deemed for the purposes of that subsection to have been returned when sent by the consumer to the supplier.

(7) Any breach of the consumer's obligations under this Section is actionable by the supplier as a breach of statutory duty. 2001, c. 40, s. 1.

Application by supplier for relief from Section 21AA

21AD A supplier may make an application to the Supreme Court claiming that it would be inequitable for an internet sales contract to be cancelled under Section 21AA and the Court may, upon the application, make any order it considers appropriate. 2001, c. 40, s. 1.

Recovery of consideration where cancellation under Section 21AA

21AE Where a consumer has cancelled an internet sales contract under Section 21AA and the supplier has not refunded all of the consideration within the fifteen-day period referred to in Section 21AC, the consumer may recover the consideration from the supplier as an action in debt. 2001, c. 40, s. 1.

Reversal of credit card charge where cancellation under Section 21AA

21AF (1) A consumer who has charged to a credit card account all or any part of the consideration payable under an internet sales contract or related consumer transaction may request the credit card issuer to cancel or reverse the credit card charge and any associated interest or other charges if the consumer has cancelled the contract under Section 21AA and the supplier has not refunded all of the consideration within the fifteen-day period referred to in Section 21AC.

(2) A request under subsection (1) shall be in writing or electronic form and shall

(a) contain the requirements prescribed by the regulations; and

(b) be made within any time period prescribed by the regulations.

(3) The credit card issuer may, upon receiving a request under subsection (1), require that the consumer verify the content of the request by affidavit or declaration.

(4) The credit card issuer shall

(a) acknowledge the consumer's request within thirty days of receiving it; and

(b) where the request satisfies subsections (2) and (3), cancel or reverse the credit card charge and any associated interest or other charges within two complete billing cycles of the credit card issuer or ninety days, whichever first occurs.

(5) A request under subsection (1) may be given to the credit card issuer by any means, including, but not limited to, personal service, registered mail, courier, facsimile and electronic mail.

(6) Where the request is given other than by personal service, the request is deemed to be given when sent. 2001, c. 40, s. 1.

Rights preserved

22 The rights of a buyer or borrower under this Act are in addition to any rights of the buyer or borrower under any other Act or by the operation of law and nothing in this Act shall be construed to derogate from such rights. R.S., c. 92, s. 22.

Unsolicited goods

23 (1) In this Section,

(a) "credit" means the advancing of money, goods or services to or on behalf of another for repayment at a later time, whether or not there is a cost of borrowing, and includes variable credit;

(b) "unsolicited goods" means personal property furnished to a person who did not request it and a request shall not be inferred from inaction or the passing of time alone, but, for greater certainty, does not include services and also does not include

(i) personal property that the recipient knows or ought to know is intended for another person, or

(ii) personal property supplied under a contract in writing to which the recipient is a party that provides for the periodic supply of personal property to the recipient without further solicitation.

(2) No action shall be brought by which to charge any person upon any arrangement for the extension of credit evidenced by a credit card unless the person to whom credit is to be extended requested or accepted the credit arrangement and card in writing.

(3) For the purpose of subsection (2), the obtaining of credit by the person named in the credit card shall be deemed to constitute written acceptance by him.

(4) No action shall be brought by which to charge any person for payment in respect of unsolicited goods notwithstanding their use, misuse, loss, damage or theft.

(5) Except as provided in this Section, the recipient of unsolicited goods or of a credit card that has not been requested or accepted in accordance with subsection (2) has no legal obligation in respect of their use or disposal.

(6) This Section applies in respect of credit cards and unsolicited goods received on or after the eighth day of April, 1971. R.S., c. 92, s. 23; 1994, c. 16, s. 1.

Request for credit required

24 (1) No lender shall extend credit by way of an advancement of money unless the person to whom the credit is extended has previously applied for or requested it.

(2) No action shall be brought against a person for repayment of credit extended contrary to subsection (1). R.S., c. 92, s. 24.

Negative-option strategy

24A (1) For the purpose of this Section, a seller uses a negative-option strategy in delivering a service where the seller delivers a service to a buyer after having, on or after April 26, 1994, first notified the buyer to the effect that

(a) the seller proposes to deliver the service; and

(b) the service will be delivered and the buyer will be billed for the service unless the buyer, on or before the time specified in the notice or during a particular time period, instructs the seller not to deliver the service,

and the buyer neither instructs the seller not to supply the services nor authorizes or requests the seller to deliver the services.

(2) No seller shall use a negative-option strategy in the delivery of a service.

(3) Where a negative-option strategy is used in the delivery of a service, no action lies for the payment of any fee or purchase price for the service. 1994, c. 16, s. 2.

Rights and obligations of assignee

25 Notwithstanding any other enactment or law but subject to this Act, the assignee of any rights of a lender in an extension of credit or any transaction to which this Act applies has no greater rights than, and is subject to the same obligations, liabilities and duties as, the assignor, and this Act applies equally to such an assignee, but the liability of the assignee is limited to the total amount owing to the lender at the date of assignment under the agreement governing the extension of credit or transaction. R.S., c. 92, s. 25.

Interpretation of Sections 25A to 25J

25A In Sections 25A to 25J,

(a) "customer" means a person who enters into, or is discussing with an operator the prospect of entering into, a contract;

(b) "initiation fee" means a one-time fee in addition to the membership fee;

(c) "membership fee" means the amount payable by a customer for the use of services;

(d) "operator" means a person who provides or offers to provide services;

(e) "payment" includes an initiation fee;

(f) "services" means facilities provided for, or instruction on,

(i) health, fitness, modeling, tanning, diet or matters of a similar nature, or

(ii) sports, dance or similar activities.

1998, c. 8, s. 24.

 

Application of Sections 25A to 25J

25B (1) Sections 25A to 25J apply in respect of services or proposed services for which payment in advance is required.

(2) Sections 25A to 25J do not apply in respect of services that are provided

(a) on a non-profit or co-operative basis;

(b) by a private club primarily owned by its members;

(c) incidental to the main business of the operator where no fee is charged for the services;

(d) by an operator funded or run by a charitable or municipal organization or by the Province or any agency thereof;

(e) for an amount less than that prescribed by the regulations. 1998, c. 8, s. 24.

Restriction on advance payment

25C (1) No operator shall require or accept advance payment for services from a customer with whom the operator

(a) does not have a written contract that meets the conditions set out in Section 25D; or

(b) has a contract where all of the services contracted for by the customer are not available to the customer at the beginning of the term of the contract with the customer.

(2) The term of a contract begins when all of the services contracted for are first made available to the customer.

(3) No contract shall be made for a term longer than one year.

(4) All payments received in contravention of subsection (1) are repayable to the person making the payments on demand by that person. 1998, c. 8, s. 24.

Required contents of contract

25D (1) A contract shall set out

(a) the name and address of the operator and the customer;

(b) a description of the services contracted for by the customer that is sufficient to identify those services with certainty;

(c) the price of the services contracted for;

(d) the conditions upon which the contract may be renewed, cancelled or rescinded;

(e) where payment is to be by instalment, the number of instalments, the amount of each instalment and the total additional cost, if any, for payment by instalment; and

(f) where any part of the services are not available at the time the contract is signed, the date that the services will be made available and the name and address of the person holding the funds pending availability.

(2) A contract that provides for renewal shall provide that it is not renewable if the customer notifies the operator in writing, before the time for renewal, that the customer does not want to renew. 1998, c. 8, s. 24.

Limitation on fees

25E (1) No operator shall charge a customer more than one initiation fee.

(2) No operator shall charge an initiation fee that is greater than twice the membership fee. 1998, c. 8, s. 24.

Requirement for instalment plan

25F (1) Every operator shall make available to every customer at least one plan for instalment payments of membership and, where applicable, initiation fees whereby the customer may make equal monthly payments over the term of the contract.

(2) In a plan for payments, the total amount paid by instalments shall not exceed the membership or initiation fee, if applicable, by more than twenty-five per cent. 1998, c. 8, s. 24.

Rescission

25G (1) A customer may rescind a contract by delivering written notice of rescission to the operator within five days after the contract is signed or the services are available, whichever is the later.

(2) A notice of rescission sent to an operator by registered mail is deemed to be delivered on the day that it is mailed.

(3) A customer who rescinds a contract is not liable for payment for services received or used up to the rescission and is entitled to a refund of any payment pursuant to the contract. 1998, c. 8, s. 24.

Time for payment of refund

25H Every operator who owes a refund shall pay the refund within twenty days

(a) after receiving notice of rescission or cancellation, as the case may be; or

(b) where Section 25J applies, after the day specified in the contract or the expiration of the last permission, whichever is the later. 1998, c. 8, s. 24.

Non-application of renewal provision

24I [25I] (1) Where a contract provides for renewal and the operator does not deliver to the customer a notice reminding the customer of the provision required by subsection (2) of Section 25D, the provision for renewal does not apply.

(2) A notice pursuant to subsection (1) shall be delivered at least thirty days before, but not more than ninety days before, the end of the contract.

(3) A notice pursuant to subsection (1) sent by registered mail to the customer at the last known address of the customer on file with the operator is deemed to be delivered on the day that it is mailed. 1998, c. 8, s. 24.

Obligation to refund

25J (1) Where a facility is not available for use on the day specified in the contract, the operator shall refund all payments received from the customer unless the customer agrees, in writing, to permit the operator to retain the payment.

(2) No permission given pursuant to subsection (1) applies for longer than ninety days but a subsequent permission may be given on the expiration of a permission. 1998, c. 8, s. 24.

Implied conditions or warranties

26 (1) In this Section and Section 27, "consumer sale" means a contract of sale of goods or services including an agreement of sale as well as a sale and a conditional sale of goods made in the ordinary course of business to a purchaser for his consumption or use but does not include a sale

(a) to a purchaser for resale;

(b) to a purchaser whose purchase is in the course of carrying on business;

(c) to an association of individuals, a partnership or a corporation; or

(d) by a trustee in bankruptcy, a receiver, a liquidator or a person acting under the order of a court.

(2) In this Section and Section 27, "purchaser" means a person who buys or agrees to buy goods or services.

(3) Notwithstanding any agreement to the contrary, the following conditions or warranties on the part of the seller are implied in every consumer sale:

(a) a condition that the seller has a right to sell the goods, and that, in the case of an agreement to sell, he will have a right to sell the goods at the time when the property is to pass;

(b) a warranty that the purchaser shall have and enjoy quiet possession of the goods;

(c) a warranty that the goods shall be free from any charge or encumbrance in favour of any third party, not declared or known to the buyer before or at the time when the contract is made;

(d) where there is a contract for the sale of goods by description, there is a condition that the goods shall correspond with the description; and if the sale be by sample as well as by description, it is not sufficient that the bulk of the goods corresponds with the sample if the goods do not also correspond with the description;

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

(f) where goods are bought by description from a seller who deals in goods of that description, whether he be the manufacturer or not, a condition that the goods shall be of merchantable quality, provided that, if the purchaser has examined the goods, there shall be no implied condition as regards defects which such examination ought to have revealed;

(g) in the case of a contract for sale by sample

(i) a condition that the bulk shall correspond with the sample in quality,

(ii) a condition that the purchaser shall have a reasonable opportunity of comparing the bulk with the sample,

(iii) a condition that the goods shall be free from any defect, rendering them unmerchantable, which would not be apparent on reasonable examination of the sample;

(h) a condition that the goods are of merchantable quality, except for such defects as are described;

(i) a condition that the goods, whether bought by description or otherwise, are new and unused unless otherwise described;

(j) a condition that the goods shall be durable for a reasonable period of time having regard to the use to which they would normally be put and to all the surrounding circumstances of the sale.

(4) For the purposes of clause (h) of subsection (3), it is not necessary to specify every defect separately, if the general condition or quality of the goods is stated with reasonable accuracy.

(5) There shall be implied in every consumer sale of services a condition, on the part of the seller, that the services sold shall be performed in a skilful and workmanlike manner.

(6) This Section applies to contracts entered into on or after the fifteenth day of August, 1975. R.S., c. 92, s. 26.

Sale not binding

27 (1) A consumer sale is not binding upon the purchaser if with respect thereto the seller gives, or offers to give, a rebate or discount to the purchaser in consideration of his giving to the seller the names of prospective purchasers, or otherwise aiding the seller in making a sale to another person, if the earning of the rebate, discount or other value is contingent upon the occurrence of an event subsequent to the time the purchaser agrees to buy.

(2) This Section applies to contracts entered into on or after the fifteenth day of August, 1975. R.S., c. 92, s. 27.

Void terms

28 (1) Any written term or acknowledgment, whether part of a contract of sale or not, that purports to negative or vary any of the conditions or warranties set out in this Act or states that the provisions of this Act or the regulations do not apply or that a benefit or remedy under this Act or the regulations is not available, or that in any way limits or abrogates, or in effect limits, modifies, or abrogates, a benefit or remedy under this Act or the regulations, or that in any way limits, modifies or abrogates any liability of the seller including any limitation, modification or abrogation of damages for breach of any of the conditions or warranties set out in this Act or the regulations, is void.

(2) If a written term or agreement contrary to this Act or the regulations is a term of the contract, it shall be severable therefrom.

(3) A written term or acknowledgement contrary to this Act or the regulations shall not be evidence of circumstances showing an intent that any of the implied conditions and warranties are not to apply.

(4) Money paid under or by reason of a written term or acknowledgement contrary to this Act or the regulations is recoverable in a court of law.

(5) This Section applies to contracts entered into on or after the fifteenth day of August, 1975. R.S., c. 92, s. 28.

Express warranties

28A (1) For the purpose of this Section, a manufacturer, seller or lessor makes an express warranty respecting an automobile where the manufacturer, seller or lessor makes a statement respecting the automobile either

(a) as part of a written contract for the sale or lease of the automobile by the seller or lessor to a purchaser or lessee; or

(b) to the public or any part of the public, no matter in what manner the statement is made, including any advertisement.

(2) Where a manufacturer, seller or lessor makes an express warranty of the kind described in subclause (1)(b) respecting an automobile and subsequently sells or leases the automobile to a purchaser or lessee, the express warranty is deemed, for the purposes of this Section, to be part of the contract of sale or lease.

(3) Where an express warranty forms part of a contract of sale or lease of an automobile, each subsequent purchaser or lessee who acquires an ownership or leasehold interest in the automobile has the same rights and remedies under the express warranty as if the subsequent purchaser or lessee were the original purchaser or lessee under the contract.

(4) No person shall charge or collect any fee for the transfer of a warranty by the operation of subsection (3). 1994, c. 16, s. 3.

Offence and penalty

29 (1) Every person who violates or fails to comply with any provision of this Act or the regulations or an order or direction given under this Act or the regulations and every director of a corporation who knowingly concurs in a violation or failure to comply with any provision of this Act or the regulations or an order or direction given under this Act or the regulations is guilty of an offence and liable on summary conviction to a penalty of not more than two thousand dollars or to imprisonment for a term of not more than one year, or both.

(2) Where a corporation is convicted of an offence under subsection (1) it is liable to a penalty of not more than twenty-five thousand dollars. R.S., c. 92, s. 29; revision corrected 1999.

Limitation period

30 Notwithstanding subsection 786(2) of the Criminal Code (Canada), an information for an offence under this Act may be laid at any time within three years from the time when the offence or act was committed. R.S., c. 92, s. 30.

Proof of statement

31 A statement as to

(a) the registration or non-registration of any person;

(b) the filing or non-filing of any document or material required or permitted to be filed with the Registrar;

(c) the time when the facts upon which proceedings are based first came to the knowledge of the Registrar; or

(d) any other matter pertaining to such registration, non-registration, filing or non-filing or to any such person, document or material,

purporting to be certified by the Registrar is, without proof of the office or signature of the Registrar, receivable in evidence as prima facie proof of the facts stated therein for all purposes in any action, proceeding or prosecution. R.S., c. 92, s. 31.

Appeal

32 Any person aggrieved by a decision, order or direction of the Registrar may within thirty days after receiving notice of the decision, order or direction appeal therefrom to the judge of the county court for the district in which the person resides or carries on his principal business and the judge on the hearing of the appeal may confirm, vary or set aside the decision, order or direction. R.S., c. 92, s. 32.

Regulations

33 The Governor in Council may make regulations

(a) providing for the issuance of permits to lenders or any class or classes of lenders and their agents, officers, servants or employees;

(b) prescribing the forms of application for a permit and the information to be supplied by applicants therefor;

(c) prescribing the terms and conditions of a permit or any type or class of permit;

(d) repealed 1998, c. 8, s. 25.

(e) requiring sellers or any class of sellers to be bonded in such form and terms and with such collateral security as are prescribed and providing for the forfeiture of security and the disposition of the proceeds;

(f) respecting the suspension or cancellation of a permit;

(g) declaring that this Act does not apply to a buyer or seller or a class or classes of buyers or sellers, or to a borrower or lender or a class or classes of borrowers or lenders;

(h) providing for approval of forms of agreements, assignments and other instruments and documents to be used by lenders;

(i) requiring any class or classes of lenders to submit forms of credit agreements, instruments and other documents used by him or them to the Registrar for approval;

(j) requiring the use by lenders of credit agreements, instruments and other documents that are in a form approved by the Registrar and prohibiting the use by any class or classes of lenders of such agreements, instruments or documents that are not in a form approved by the Registrar;

(k) prescribing the manner in which the cost of borrowing stated as a percentage shall be calculated and expressed by any class or classes of lenders which may be different for different classes of lenders or for different types of businesses carried on by lenders;

(l) prescribing the form of and information to be contained in a statement required by subsection (2) of Section 17;

(m) prescribing the manner of determining the apportionment of the cost of borrowing for the purposes of Section 19;

(n) prohibiting collection methods or practices, or prescribing a code of ethics for lenders;

(o) regulating forms of advertising by lenders relating to the extension of credit;

(p) prescribing the form and content of records relating to lending to be kept by lenders and the length of time for which they must be kept;

(q) prescribing reports and returns to be made by lenders or any class or classes of lenders and requiring them to be made to the Registrar;

(r) prescribing forms and providing for their use and requiring the information in any form to be verified by affidavit;

(s) prescribing fees for a permit, searches, certificates and other matters or services rendered or supplied by the Registrar. R.S., c. 92, s. 33; 1998, c. 8, s. 25; 1999, c. 4, s. 9.

Regulations

34 (1) The Governor in Council may make regulations

(a) respecting classes of goods and services to which Sections 21X to 21AF do not apply;

(b) prescribing information to be disclosed by a supplier before entering into an internet sales contract with a consumer;

(c) respecting the manner in which information may be disclosed to a consumer by a supplier before an internet sales contract is entered into;

(d) prescribing the requirements to be included in a copy of an internet sales contract;

(e) respecting the sending or provision of copies of internet sales contracts;

(f) respecting circumstances in which a consumer may cancel an internet sales contract;

(g) respecting the manner in which a consumer may notify a supplier of cancellation of an internet sales contract;

(h) respecting applications made pursuant to Section 21AD;

(i) prescribing requirements for a request by a consumer to a credit card issuer made under subsection (1) of Section 21AF;

(j) respecting time periods in which a request by a consumer to a credit card issuer may be made under subsection (1) of Section 21AF;

(k) defining any word or expression used but not defined in Sections 21V to 21AF;

(l) considered necessary or advisable to carry out effectively the intent and purpose of Sections 21V to 21AF.

(2) The exercise by the Governor in Council of the authority contained in subsection (1) is regulations within the meaning of the Regulations Act. 2001, c. 40, s. 2.


This page and its contents published by the Office of the Legislative Counsel, Nova Scotia House of Assembly, and © 2004 Crown in right of Nova Scotia. Created July 13, 2004. Send comments to legc.office@gov.ns.ca.