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The Consumer Protection Act

Updated to: April 3, 2006

C.C.S.M. c. C200

The Consumer Protection Act


Table of Contents

Regulations

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

Definitions

1(1)        In this Act

"assignee" includes any person in whom the right or benefit concerned has become vested, as a result of any assignment or series of assignments; (« cessionnaire »)

"borrower" means a person borrowing money or obtaining credit and includes a buyer of goods or services on credit and a hirer of goods on hire-purchase, but does not include a buyer of goods or services on credit or a hirer of goods on hire-purchase where those goods or services or both are to be used for the primary purpose of carrying on a business; (« emprunteur »)

"bureau" means the Consumers' Bureau; (« Office »)

"buyer" includes a hirer on a retail hire-purchase; (« acheteur »)

"cash price" of any goods or services means the price that would be charged by the seller for goods or services to a buyer who paid cash for them at the time of purchase and includes

(a) any amount paid by a buyer for tokens, coupons, certificates or other documents or things that are redeemable or exchangeable for all or part of the price of the goods or services, and

(b) the amount of sales tax paid by the buyer or hirer in the transaction; (« prix au comptant »)

"collection agent" means any person who

(a) collects or attempts to collect money owing to others, or

(b) is used by others to levy distress or seize goods, or

(c) collects money under any name which differs from that of the creditor to whom the money is owed, or

(d) offers or undertakes to act for a debtor in arrangements or negotiations with his creditors or receives money from a debtor for distribution to his creditors, or

(e) solicits accounts for collection or offers or undertakes to collect debts for others either immediately or at a future date, or

(f) writes letters, or makes telephone or personal calls on behalf of others for the purpose of inducing a debtor to pay a debt,

but does not include

(g) a person who accepts payment of accounts on behalf of creditors but who does not otherwise negotiate with or in anyway attempt to obtain payment from debtors in respect of the amount owing, or

(h) a bank, or

(i) a credit union, or

(j) a trustee licensed under the Bankruptcy Act acting in that capacity, or

(k) a duly appointed officer of a court, or

(l) a barrister or solicitor entitled to practice in Manitoba and acting in that capacity, or

(m) a trust company, or

(n) a person registered under The Real Estate Brokers Act as a real estate broker acting in that capacity, or a person registered under The Real Estate Brokers Act as a salesman acting in that capacity, or

(o) a person licensed under The Insurance Act as an insurance agent acting in that capacity, or

(p) a person registered under The Mortgage Dealers Act as a mortgage dealer acting in that capacity, or

(q) a person appointed under The Corporations Act as a liquidator acting in that capacity; (« agent de recouvrement »)

"common-law partner" of a person means a person who, not being married to the other person, is cohabiting with him or her in a conjugal relationship of some permanence; (« conjoint de fait »)

"cost of borrowing" means

(a) where used in connection with a retail sale or hire-purchase of goods or services or both otherwise than on variable credit, the difference between

(i) the total amount which the buyer is required to pay in the transaction (including any down payment and the value ascribed in the contract to any trade-in or other allowance to him), if all payments are made as they fall due, and

(ii) the total cash price as described in subsection 4(2) or 5(2);

(b) where used in relation to a loan agreement, the difference between

(i) the total amount that the borrower has to pay in the transaction, if all payments are made as they fall due, and

(ii) the aggregate of the amounts described in clauses 13(2)(a), (b), (c) and (d) (other than any amount which is declared by section 20 to be part of the cost of borrowing) subject to such adjustment thereof as may be required by subsection 14(1) or (2), if applicable;

(c) where used in relation to a transaction to which subsection 14(3), the difference between

(i) the total amount which the borrower is required to pay in the transaction (including any down payment and the value ascribed in the agreement to any trade-in or other allowance to him), if all payments are made as they fall due; and

(ii) the aggregate of the total cash price of the goods or services, or both, being purchased and the amounts described in clauses 14(3)(b) and (c);

(d) where used in relation to variable credit, the charges that the buyer or borrower is required to pay periodically on the unpaid balance from time to time for the privilege of purchasing or borrowing on variable credit; (« frais d'emprunt »)

"court" means the Court of Queen's Bench; (« tribunal »)

"credit grantor" means a person lending money or extending credit and includes a seller of goods or services on credit and a person letting goods on hire-purchase; (« fournisseur de crédit »)

"debtor" includes a borrower and any person who is responsible for the payment of a debt by virtue of guaranteeing a borrower's liability to pay the debt; (« débiteur »)

"director" means the person employed by the government under the minister and designated as the director of the bureau, and includes a deputy of the director; (« directeur »)

"direct seller" means the person who, on behalf of a vendor, makes any offer, solicitation, proposal or approach which is intended to result in a sale to which Part VII applies; (« démarcheur »)

"goods" means chattels personal other than things in action or money, and includes, food products, emblements, industrial growing crops and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale, and chattels which are to be affixed to land upon or after delivery thereof; (« objets »)

"instalments of approximately equal amount" means a series of instalments in which the amount of any one instalment is not different from the equal amounts of all other instalments by more than one dollar multiplied by the number of instalments required to be paid; (« versements à peu près égaux »)

"legal rate" of interest means the rate from time to time payable under the Interest Act (Canada) on liabilities on which interest is payable but on which no other rate is fixed; (« taux légal »)

"loan agreement" means a document or memorandum in writing

(a) evidencing a loan of money; or

(b) made or given as security for a loan of money; or

(c) made or given as security for a past indebtedness; (« convention de prêt »)

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

"money lender" means a person who carries on the business of money lending or advertises himself, or holds himself out in any way, as carrying on that business, but does not include a registered pawn broker as such; (« prêteur d'argent »)

"mortgage", "mortgagee", "mortgage money" and "mortgagor" have the meanings assigned to them by The Mortgage Act; (« hypothèque », « créancier hypothécaire », « somme garantie par une hypothèque », « débiteur hypothécaire »)

"prescribed" means prescribed by the regulations made under this Act; (« prescrit »)

"retail hire-purchase" of goods means any hiring of goods from a person in the course of his business in which

(a) the hirer is given an option to purchase the goods; or

(b) it is agreed that upon compliance with the terms of the contract the hirer will either become the owner of the goods or will be entitled to keep them indefinitely without any further payment;

except

(c) a hiring in which the hirer is given an option to purchase the goods exercisable at any time during the hiring and which may be determined by the hirer at any time prior to the exercise of the option on not more than two months' notice without any penalty;

(d) a hire-purchase of goods by a hirer who himself intends either to sell them or to re-let them for hire by others unless the goods are intended for resale or re-let in a manner to which Part VII of this Act applies;

(e) a hire-purchase by a hirer who is a retailer of a vending machine or a bottle cooler to be installed in his retail establishment;

(f) a hire-purchase of farm machinery and equipment to which The Farm Machinery and Equipment Act applies;

(g) a hire-purchase in which the hirer is a corporation; and

(h) a hire-purchase of goods by a hirer who himself intends to use them or uses them for the primary purpose of carrying on a business, unless the goods are intended for resale or re-let in a manner to which Part VII applies; (« location-vente au détail »)

"retail sale" of goods or of services or of both means any contract of sale of goods or services or both made by a seller in the course of his business except

(a) any contract of sale of goods which are intended for resale by the buyer in the course of his business unless the buyer intends to resell or re-let the goods or services, or both, in a manner to which Part VII applies;

(b) any contract of sale to a retailer of a vending machine or a bottle cooler to be installed in his retail establishment;

(c) any contract of sale of farm machinery and equipment to which The Farm Machinery and Equipment Act applies;

(d) any contract of sale to a corporation; and

(e) any contract of sale of goods or services intended to be used or used by the purchaser for the primary purpose of carrying on a business, unless the goods or services are intended for resale or re-let in a manner to which Part VII applies; (« vente au détail »)

"sale" includes any transaction whereby the whole or part of the price is paid or satisfied by the exchange of other property, real or personal; (« vente »)

"sale of goods" includes any transaction in which goods are sold, whether separately or together with services; (« vente d'objets »)

"sale of services" means furnishing or agreeing to furnish services and includes making arrangements to have services furnished by others and any transaction in which services are sold, whether separately or together with goods; (« vente de services »)

"seller" includes a person who lets goods on hire by a retail hire-purchase; (« vendeur »)

"services" includes

(a) work, labour and other personal services;

(b) privileges with respect to transportation, hotel and restaurant accommodations, education, entertainment, recreation, physical culture, funerals, cemetery accommodations and the like; and

(c) insurance provided by a person other than the insurer; (« services »)

"time sale agreement" means an agreement evidencing a time sale; (« convention de vente à tempérament »)

"time sale" means

(a) any retail sale of goods or of goods and services under which possession of the goods is to be delivered to the buyer, but the transfer of the property in the goods to the buyer is to take place subsequently to such delivery upon payment by him of the whole or part of the price and cost of borrowing, if any, whether or not such transfer is also subject to the fulfilment of some other condition;

(b) any retail hire-purchase of goods; and

(c) for the purpose of sections 46 to 56 any retail sale of goods or of goods and services in which the seller takes back a chattel mortgage on those goods to secure payment of the whole or part of the price; (« vente à tempérament »)

"variable credit" means credit made available under an agreement whereby the credit grantor agrees to make credit available to be used from time to time, at the option of the borrower, for the purpose of a loan of money, or the purchase of goods or services or both, from time to time, 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, but does not include any agreement or arrangement in which there is neither a cost of borrowing payable by the borrower nor any additional charge, other than court costs, payable by the borrower in the event of default; (« crédit variable »)

"variable rate agreement" means an agreement that is subject to variations in the true annual percentage rate of the cost of borrowing, and includes all agreements evidencing loans of money, retail sales on credit or retail hire purchases wherein the true annual percentage rate of the cost of borrowing either at, or from time to time subsequent to, the time of signing the agreement is made subject to variations; (« convention assujettie à un taux variable »)

"vendor" means the person who makes on his own behalf, or uses others to make on his behalf, any offer, solicitation, proposal or approach which is intended to result in a sale to which Part VII applies. (« marchand »)

1(2)        Repealed, S.M. 1989-90, c. 53, s. 5.

Registered common-law relationship

1(3)        For the purposes of this Act, while they are cohabiting, persons who have registered their common-law relationship under section 13.1 of The Vital Statistics Act are deemed to be cohabiting in a conjugal relationship of some permanence.


S.M. 1989-90, c. 53, s. 2 to 5; S.M. 2002, c. 24, s. 13; S.M. 2002, c. 47, s. 30; S.M. 2002, c. 48, s. 28.

Rules to determine cost of borrowing and price

2(1)        For the purpose of determining

(a) whether the cost of borrowing in a sale or hire-purchase exceeds $10.; or

(b) the amount of the cash price of goods or services or both comprised in a sale or hire-purchase;

the following rules apply:

(c) The cost of borrowing in all sales and hire-purchases which are part of the same transaction shall be added together.

(d) The cash price of goods and services comprised in all sales and hire-purchases which are part of the same transaction shall be added together.

(e) Unless the contrary is proved, all sales and hire-purchases made between the same seller and the same buyer on the same day shall be presumed to be part of the same transaction.

Disclosure of cash price of goods or services

2(2)        The cash price of goods or services or both shall be disclosed by the seller to the buyer or hire purchaser in such manner as may be required by the regulations.


S.M. 1989-90, c. 53, s. 6.

Application of Act

3           Nothing in this Act applies to any loan made by, or any security given to, the Federal Business Development Bank, the Canadian Farm Credit Corporation, Canada Mortgage and Housing Corporation, Manitoba Development Corporation or Manitoba Agricultural Services Corporation.


S.M. 2005, c. 28, s. 82.

PART I

DISCLOSURE OF COST OF BORROWING

Application of section

4(1)        This section applies to every retail sale of goods or services or goods and services on credit in which there is any cost of borrowing payable by the buyer except

(a) a sale made on variable credit; and

(b) a sale in which the cost of borrowing does not exceed $10 dollars.

Contents of agreement

4(2)        Every sale to which this section applies shall be evidenced by a writing, signed by the buyer or his agent prior to, or at the time of delivery of the goods or performance of the services which shall contain a description of the goods or services and shall state

(a) the cash price of the goods included in the sale;

(b) the amount of any applicable delivery or installation charge, if not included in the cash price of the goods;

(c) any insurance charges actually paid or to be paid by the seller to an insurer on behalf of the buyer on his request;

(d) the registration fee, if any;

(e) the total of the amounts mentioned in clauses (a), (b), (c) and (d);

(f) the amount or value of any down payment, trade-in or other allowance made to the buyer;

(g) the balance of the total cash price, being the difference between the total mentioned in clause (e) and the amount mentioned in clause (f);

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

(i) the balance owing, being the aggregate of the balance mentioned in clause (g) and the amount mentioned in clause (h);

(j) the details of the manner in which the balance owing is to be paid, as required by section 7 or 9;

(k) the aggregate of the cost to the buyer being the total mentioned in clause (e) and the amount mentioned in clause (h);

(l) the true annual rate of the cost of borrowing calculated in accordance with section 10 and the regulations expressed as a percentage; and

(m) the total additional charge, if any, other than court costs, to be paid in the event of default expressed as a rate percentage per annum.

Variable rate agreement

4(3)        A variable rate agreement under this section shall set out all the elements in clauses (2)(a) to (m) but all calculations therein shall be based on the true annual rate of the cost of borrowing at the time the agreement is signed as set out in clause (2)(l) and, in addition, the agreement shall clearly set forth in type of not less than 10 point size immediately above the borrower's signature a statement that the agreement is subject to variations in the true annual rate of the cost of borrowing and shall specify the conditions under which the true annual rate may vary and what other changes in the agreement may be made as a result of the variation.

Written notice

4(4)        Except as provided by regulation, a credit grantor shall give at least every six months to the borrower who is a party to a variable rate agreement under this section a written notice that shall set out as of the date of the notice

(a) the amount of credit outstanding;

(b) the true annual rate being charged; and

(c) the amount of the periodic payment.

Consequence of failure to disclose

4(5)        Where a variable rate agreement under this section does not contain the statement required by subsection (3), the credit grantor, notwithstanding the terms of the agreement, shall not be allowed to increase the true annual rate of the cost of borrowing or to make any other changes in the agreement but the borrower shall have the benefit of any term of the agreement which would decrease the true annual rate.


S.M. 1989-90, c. 53, s. 7.

Application to hire-purchase

5(1)        This section applies to every retail hire-purchase of goods in which the cost of borrowing exceeds $10.

Contents of agreement

5(2)        Every hire-purchase to which this section applies shall be evidenced by a writing, signed by the hirer or his agent prior to, or at the time of, delivery of the goods, which shall contain a description of the goods and shall state

(a) the cash price of the goods included in the hire-purchase;

(b) the amount of any applicable delivery or installation charge, if not included in the cash price of the goods;

(c) any insurance charges actually paid or to be paid by the seller to an insurer on behalf of the hirer on his request;

(d) the registration fee, if any;

(e) the total cash price, being the aggregate of the amounts mentioned in clauses (a), (b), (c) and (d);

(f) the amount or value of any down payment, rent paid or to be paid in advance of delivery or on delivery, trade-in or other allowance made to the hirer;

(g) the balance of the total cash price, being the difference between the total mentioned in clause (e) and the amount mentioned in clause (f);

(h) the total cost of borrowing, being the difference between the balances mentioned in clauses (i) and (g) expressed as one sum in dollars and cents;

(i) the balance owing, being the aggregate of the rent to be paid by the hirer subsequent to delivery of the goods, and of all further payments, if any, not included in the rent which the hirer will have to pay in order to purchase or become the owner of the goods;

(j) the details of the manner in which the balance owing is to be paid, as required by section 7 or 9;

(k) the aggregate of the cost to the hirer being the total of the amounts mentioned in clauses (e) and (h);

(l) the true annual rate of the cost of borrowing calculated in accordance with section 10 and the regulations expressed as a percentage; and

(m) the total additional charge, if any, other than court costs, to be paid in the event of default expressed as a rate percentage per annum.

Variable rate agreement

5(3)        A variable rate agreement under this section shall set out all the elements in clauses (2)(a) to (m) but all calculations therein shall be based on the true annual rate of the cost of borrowing at the time the agreement is signed as set out in clause (2)(l) and, in addition, the agreement shall clearly set forth in type of not less than 10 point size immediately above the borrower's signature a statement that the agreement is subject to variations in the true annual rate of the cost of borrowing and shall specify the conditions under which the true annual rate may vary and what other changes in the agreement may be made as a result of the variation.

Written notice

5(4)        Except as provided by regulation, a credit grantor shall give at least every six months to the borrower who is a party to a variable rate agreement under this section a written notice that shall set out as of the date of the notice

(a) the amount of credit outstanding;

(b) the true annual rate being charged; and

(c) the amount of the periodic payment.

(d) Repealed, S.M. 1989-90, c. 53, s. 8.

(e) Repealed, S.M. 1989-90, c. 53, s. 8.

(f) Repealed, S.M. 1989-90, c. 53, s. 8.

Consequence of failure to disclose

5(5)        Where a variable rate agreement under this section does not contain the statement required by subsection (3), the credit grantor, notwithstanding the terms of the agreement, shall not be allowed to increase the true annual rate of the cost of borrowing or to make any other changes in the agreement but the borrower shall have the benefit of any term of the agreement which would decrease the true annual rate.


S.M. 1989-90, c. 53, s. 8.

Buyer to have copy of agreement

6(1)        As soon as possible after the writing required by section 4 or 5, or by subsection 14(3), is received by the seller or his agent, and in any event not later than the time of delivery of the goods or performance of the services, as the case may be, the seller shall give a true copy of the writing to the buyer; but

(a) if there is more than one buyer, it is sufficient to give a copy to one of them; and

(b) if the writing was signed by an agent of the buyer, the copy may be given to that agent.

Acknowledgment of receiving agreement

6(2)        The buyer or agent to whom the copy of the writing is given shall, if so requested by the seller, acknowledge receipt thereof; and in any case the writing is not binding on the buyer unless a copy thereof has been given as provided herein.

Right to accounting

6(3)         A buyer or hirer is entitled upon request to obtain from a seller, his successors or assigns, at least once during any calendar year, or at any time where a dispute arises between the buyer or hirer and seller, as the case may be, a detailed account of the buyer's or hirer's indebtedness to the seller, under section 4, 5, 12, or 14.

Director may order accounting

6(4)        Where a seller within 30 days after a request made under subsection (3) fails, refuses or neglects to provide the accounting requested, the buyer or hirer may refer the matter to the director who may order the seller to provide the accounting in accordance with subsection (3) and within such time as may be specified by the director.

Dates of payments

7           Subject to section 9, the details, required by section 4 or 5, of the manner in which the balance owing is to be paid shall include the date and the amount of each payment to be made, except only that where that manner consists of, or includes, a succession of instalments, of approximately equal amount, payable monthly or at any other regular periods, it is a sufficient statement of that succession of instalments to state them in the following form:

"   equal consecutive payments of $      each on the first day of each month commencing on the 1st day of     ,     , and ending on the 1st day of      ,     , totalling $     .",

with such changes as may be necessary to fit the circumstances of the case.

Delivery of goods, etc.

8(1)        Subject to section 9, if the writing required by section 4 or 5 is signed prior to the delivery of the goods or performance of the services, the seller shall deliver the goods, or perform the services, not later than seven days after the delivery date, which is

(a) the date for delivery or performance fixed by the writing; or

(b) if none is so fixed, the date on which the writing is received by the seller or his agent.

Late delivery

8(2)        If the seller does not deliver the goods or perform the services within the time limited by subsection (1), the buyer is entitled to a rebate of part of the cost of borrowing, calculated by applying the true annual rate of the cost of borrowing to the amount of the balance owing over the period of the seller's default.

Rights preserved

8(3)        Nothing herein derogates from the buyer his right, if any, in the transaction to rescind or cancel for late delivery, failure to perform or otherwise.

Where sec. 8 not to apply

9           Where, in any case to which either section 4 or 5 applies, the date of delivery of the goods or performance of the services is uncertain, the date or dates on which the balance owing is to be paid may be described in the writing by reference to the date on which the goods are delivered or services performed; and if that is done section 8 does not apply.

Date for calculation of cost of borrowing

10          Except as otherwise prescribed by regulation, the true annual rate of the cost of borrowing, stated in a writing required by section 4, 5 or 12, shall be calculated over the period commencing

(a) where section 8 or 12 applies, with the delivery date referred to therein; and

(b) in any other case, with the date on which the delivery of the goods or performance of the services is completed.

Payments before delivery or service

11          For the purposes of clause 4(2)(f) and clause 5(2)(f), any payment that is made or to be made by the buyer prior to the delivery of the goods or performance of the services is a down payment, notwithstanding that it may be made after the writing is signed.

Application of section

12(1)       This section applies to every

(a) loan of money other than a loan secured exclusively on real property; or

(b) retail hire-purchase; or

(c) retail sale;

made on variable credit in Manitoba.

Contents of master agreement

12(2)       Every extension of variable credit by a credit grantor shall be governed by a master agreement, which shall be signed by the borrower before the first extension of variable credit to him, and which shall state

(a) at what periods payments are to be made by the borrower;

(b) the amount of the minimum payments that will be required from the borrower, but, if this may vary according to the amount of credit extended or outstanding, the method of calculating the minimum payments shall be set out in an intelligible manner;

(c) the prevailing rate or rates of charges that the borrower will be required to pay periodically for the variable credit extended to him, expressed as a percentage or percentages per annum of the balance of principal and accrued charges outstanding at the commencement of the period;

(d) if the charges payable on payments in arrears are to be calculated otherwise than in accordance with clause (c), the manner in which those charges are to be calculated, and the rate thereof expressed as a percentage per annum on the amount in arrears; and

(e) the conditions under which the true annual rate may vary.

Table of charges

12(3)       Subject to subsection (4), the master agreement shall also contain a table showing the amount in dollars and cents of the monthly charge produced by the applicable rate or rates on outstanding balances, using a sufficiently large number of representative amounts to give a fair representation of the dollars and cents charges applicable to various sizes of outstanding balance.

Separate document for charges

12(4)       At the option of the credit grantor, the table required by subsection (3) may, instead of being included in the master agreement, be embodied in a separate document, which shall be given to the borrower before he signs the master agreement.

Delivery of master agreement

12(5)       The credit grantor shall give a copy of the master agreement to the borrower before the first extension of credit thereunder.

Several master agreements

12(6)       There may be more than one master agreement in force concurrently between a credit grantor and a borrower if

(a) each agreement relates to a different category of goods or services; or

(b) the borrower has the right to decide under which agreement any purchase or loan of money shall be made.

Agreement to govern credit

12(7)       Subject to subsection (6), every extension of variable credit by a credit grantor to a borrower who has signed a master agreement shall be governed by the last master agreement signed by the borrower.

Copies of master agreement

12(8)       A credit grantor shall, on demand, but not more often than once a year, furnish to a borrower a photostatic copy of any master agreement, signed by that borrower, that is then in force.

Variations in master agreement

12(9)       Except as otherwise provided by regulation a credit grantor may increase

(a) the rate of charges payable by the borrower; and

(b) the minimum periodic payments payable by the borrower;

in respect of purchases of goods and services and loans of money including those made previously but any increase related to the purchase of goods and services shall only be effective three months after giving the borrower written notice of the increase.

Statement of disclosure

12(10)      Except as provided by regulation, a credit grantor shall give at least every six months to the borrower in respect of a loan of money to which this section applies a written notice that shall set out as of the date of the notice

(a) the amount of credit outstanding;

(b) the true annual rate being charged; and

(c) the periodic payments.

Decreasing payments or rates

12(11)      A credit grantor may decrease the rate or rates of charges or the minimum periodic payments, or both, payable by a borrower, in respect of subsequent purchases, or subsequent loans of money, or both, or in respect of the borrower's then outstanding balance, or subsequent purchases, or subsequent loans of money, or either of them.

Liability of borrower under master agreement

12(12)      Subject to subsections (14) and (15), a borrower to whom variable credit has been extended is liable to pay periodic charges for that credit in accordance with clause (2)(c) and subsections (9) and (11); but, unless he defaults in his payments, no other cost of borrowing whatsoever.

New master agreement

12(13)      A credit grantor may at any time require a borrower to sign a new master agreement as a condition of extending fresh credit; but a refusal by the borrower to sign a new master agreement does not affect his liability in regard to credit already extended.

Where rate of charges not stated

12(14)      Where a master agreement indicates that the borrower is to pay periodic charges for variable credit extended to him, but either does not state any rate for such charges or expresses it otherwise than as a percentage per annum of the balance outstanding at the commencement of the period, the charges under that agreement shall be calculated at the legal rate of interest on the said balance.

Agreements before Act

12(15)      Any agreement for the extension of variable credit entered into before this Act comes into force continues in force notwithstanding that it does not comply with subsection (2) or subsection (3) and subsections (5), (12) and (14) do not apply thereto; but subsections (6), (7), (8), (9), (11) and (13) apply thereto.

Delivery of goods or services on variable credit

12(16)      If an extension of variable credit for goods or services to which this section applies is signed prior to the delivery of the goods or performance of the services, the seller shall deliver the goods, or perform the services, not later than seven days after the delivery date, which is

(a) the date for delivery or performance fixed by the writing; or

(b) if none is so fixed, the date on which the writing is received by the seller or his agent.

Late delivery

12(17)      If the seller does not deliver the goods or perform the services within the time limited by subsection (16), the borrower is entitled to a rebate from the seller calculated by applying the true annual rate of the cost of borrowing to the amount owing with respect to those goods or services over the period of the seller's default.

Rights preserved

12(18)      Nothing herein derogates from the borrower's right, if any, in the transaction to rescind or cancel for late delivery, failure to perform or otherwise.

Application of section

13(1)       Subject to section 3, this section applies to every loan of money made by a money lender except

(a) a loan secured exclusively on real property;

(b) a loan to a corporation;

(c) a loan made by an insurance company to a policyholder pursuant to a provision of the policy; and

(d) a loan in which the cost of borrowing does not exceed $10.

Contents of agreement

13(2)       Every loan to which this section applies shall be evidenced by a document or memorandum in writing, signed by the borrower, at or before the time the loan is made which shall set out

(a) the amount advanced or to be advanced to the borrower himself;

(b) any insurance charges actually paid or to be paid by the money lender to an insurer on behalf of the borrower on his request;

(c) any registration fee payable on any security taken for the loan;

(d) any other amount, not being a part of the cost of borrowing, advanced or to be advanced to other persons for the borrower's account, showing the name of each of those persons and the amount advanced or to be advanced to each;

(e) the total of all amounts stated in clauses (a), (b), (c) and (d);

(f) the cost of borrowing expressed as one amount in dollars and cents;

(g) the total amount to be repaid by the borrower, being the aggregate of the amounts mentioned in clauses (e) and (f);

(h) the details of the manner in which the total amount is to be repaid showing the number of payments, and the amount and date of each payment;

(i) the true annual rate of the cost of borrowing calculated in accordance with the regulations expressed as a percentage; and

(j) the total additional charge, if any, other than court costs, to be paid in the event of default expressed as a rate percentage per annum.

Variable rate agreement

13(3)       A variable rate agreement under this section shall set out all the elements in clauses (2)(a) to (j) but all calculations therein shall be based on the true annual rate of the cost of borrowing at the time the agreement is signed as set out in clause (2)(i) and, in addition, the agreement shall clearly set forth in type of not less than 10 point size immediately above the borrower's signature a statement that the agreement is subject to variations in the true annual rate of the cost of borrowing and shall specify the conditions under which the true annual rate may vary and what other changes in the agreement may be made as a result of the variation.

Written notice

13(4)       Except as provided by regulation, a credit grantor shall give at least every six months to the borrower who is a party to a variable rate agreement under this section a written notice that shall set out as of the date of the notice

(a) the amount of credit outstanding;

(b) the true annual rate being charged; and

(c) the amount of the periodic payment.

Consequence of failure to disclose

13(5)       Where a variable rate agreement under this section does not contain the statement required by subsection (3), the credit grantor, notwithstanding the terms of the agreement, shall not be allowed to increase the true annual rate of the cost of borrowing or to make any other changes in the agreement but the borrower shall have the benefit of any term of the agreement which would decrease the true annual rate.

Separate document permitted

13(6)       The particulars required by clause (2)(d) need not be set out in the loan agreement or variable rate agreement if

(a) they are contained in a separate document signed by the borrower not later than the time at which he signs the loan agreement or variable rate agreement;

(b) the borrower is given a copy of that document at the time he signs it; and

(c) the total of the amounts shown in that document is set out in the loan agreement or variable rate agreement.

Definition

13(7)       In this section "real property" includes leasehold interests therein and things attached to or forming part of the land on which the loan is secured.

Particulars in chattel mortgage

13(8)       Where a chattel mortgage is taken to secure a loan to which this section applies the chattels shall be clearly described in the mortgage and the chattel mortgage shall in all cases be deemed to be the document or memorandum in writing required under subsection (2) or (3) and shall contain all the particulars required under that subsection and a copy thereof shall be given by the mortgagee to the mortgagor as required under section 19.


S.M. 1989-90, c. 53, s. 9 and 10.

Refinancing existing indebtedness

14(1)       Except as otherwise provided in the regulations, where a borrower rearranges with a credit grantor payment any existing debt or debts owing to that credit grantor which arose out of a transaction or transactions to which section 4, 5, 13 or this section, or any two or more of them, applied, or to which those provisions or any of them would have applied if they, or any of them, had been in force at the time the transaction took place, by any arrangement that has the effect of varying the amount the borrower has to pay or the period over which he has to pay it, the transaction shall be evidenced by a document or memorandum in writing, signed by the borrower in accordance with section 13 as if the credit grantor were then advancing to the borrower the amount then required to prepay the existing debt or debts without any allowance to the credit grantor under subsection 28(3), and the credit grantor shall furnish to the borrower before he signs the agreement a written computation of that amount; and, where more than one existing debt is included in the rearrangement, a separate computation shall be made in respect of each of them.

Refinancing combined with new loan

14(2)       Except as otherwise provided in the regulations where a rearrangement of an existing debt or debts under subsection (1) is combined with an additional loan of money by the credit grantor to the borrower, the transaction shall be evidenced by a document or memorandum in writing, signed by the borrower at or before the time the additional loan is made, in accordance with section 13 as if the credit grantor were then advancing both the amount of the additional loan and the sum then required to prepay the existing indebtedness in accordance with subsection (1); but the loan agreement shall show how the total is divided between these two items, and the borrower shall be given the computation required by subsection (1).

Refinancing combined with further purchase

14(3)       Except as otherwise provided in the regulations, where a borrower wishes to combine the payment of an existing debt or debts with payments for a new purchase from the same credit grantor of goods or services, or both, to which section 4 applies, the transaction shall be evidenced by a writing, signed by the borrower prior to, or at the time of, delivery of the goods and services, which combines the information required to be given by section 4 and by subsection (1) by stating

(a) the information required by clauses 4(2)(a) to (g) in respect of the sale of the goods and services;

(b) the amount required to prepay the existing indebtedness in accordance with subsection (1);

(c) any registration fee which is payable only in respect of the refinancing of the existing indebtedness;

(d) the total present debt, being the aggregate of the balance of the total cash price of the goods and services and the amounts mentioned in clauses (b) and (c);

(e) the total cost of borrowing expressed as one amount in dollars and cents;

(f) the balance owing, being the aggregate of the amounts mentioned in clauses (d) and (e);

(g) the details of the manner in which the balance owing is to be paid, as required by section 7;

(h) the total amount the borrower will be paying to acquire the goods and services and retire the existing indebtedness, being the aggregate of any down payment, trade-in, or other allowance to the borrower on the purchase of the goods and services and the balance owing mentioned in clause (f);

(i) the true annual rate of the cost of borrowing, calculated in accordance with section 10 and the regulations, expressed as a percentage; and

(j) the total additional charge, if any, other than court costs, to be paid in the event of default expressed as a percentage per annum; and the credit grantor shall also furnish the borrower with a written computation of the amount required to prepay the existing indebtedness as provided by subsection (1) thereof.

Application of payments

14(4)       In any transaction to which subsection (3) applies, all payments made by the borrower on account of the balance owing shall be applied in payment of

(a) first, the registration fee mentioned in clause (3)(c);

(b) secondly, the amount required to prepay the existing indebtedness;

(c) thirdly, the cost of borrowing;

(d) fourthly, the balance of the total cash price of the goods and services;

and, when the borrower's payments have satisfied the amounts mentioned in clauses (a) and (b), any security held by the credit grantor for the existing indebtedness is discharged; and, if the goods being purchased are the subject of a time sale, the whole cost of borrowing is secured on them, notwithstanding subsection 56(1).

Refinancing not to be combined with hire-purchase

14(5)       The combination, as one obligation, of rent on a retail hire-purchase to which section 5 applies with instalment payments on account of an existing indebtedness is prohibited.

Additional insurance charges

14(6)       In any transaction to which this section applies, if

(a) any insurance previously charged to the borrower in a transaction from which the existing indebtedness arose is to be continued in force; and

(b) new insurance is charged to the borrower;

the agreement shall show whether the new insurance is in addition to the existing insurance or is wholly or partly in substitution for it, and in the latter event shall also show the amount of the unearned premium on the insurance being replaced, and the insurance charges charged to the borrower shall not exceed the net amount payable after credit for such unearned premium.

Dates for periodic payments

15          Where the manner in which the total amount is to be repaid consists of, or includes, a succession of instalments of approximately equal amounts payable monthly, or at any other regular periods, it is a sufficient statement of that succession of instalments for the purpose of clause 13(2)(h) for an agreement or a variable rate agreement under section 13 or clause 14(3)(g) to state them in the form set out in section 7.

Loans advanced over period

16          Where any loan to which section 13 applies is to be advanced by stages over a period of more than seven days, the loan agreement shall so state and shall

(a) name a date (hereinafter referred to as "the interest adjustment date") by which all advances are to be completed;

(b) provide that to the interest adjustment date the only cost of borrowing payable by the borrower shall be interest at the annual rate specified calculated on the amount from time to time advanced, and state when such interest shall be paid;

(c) exclude that interest from both the cost of borrowing and the total amount to be repaid by the borrower;

(d) state clearly that that interest will be in addition to the cost of borrowing and total amount to be repaid shown in the agreement;

(e) fix as the date of the first repayment to be made by the borrower a date subsequent to the interest adjustment date; and

(f) state as the true annual rate of the cost of borrowing the rate calculated over the period commencing with the interest adjustment date.

Advancing loan

17          Except as provided by section 16, the full amount of any loan to which section 13 applies shall be advanced not later than seven days after

(a) the date fixed by the loan agreement, where the date is so fixed; or

(b) where the date is not fixed by the loan agreement, the date on which the agreement is signed by the borrower;

and the true annual rate of the cost of borrowing shall be calculated over the period commencing with the date so fixed, or, if none is so fixed, with the date on which the agreement is signed by the borrower.

Rebate where loan not advanced

18          Where a credit grantor fails to advance the full amount of a loan before the interest adjustment date or within the time limited for that purpose by section 17, as the case may be, the borrower is entitled to a rebate of part of the cost of borrowing, calculated by applying the true annual rate of the cost of borrowing to the amount not so advanced over the period of the credit grantor's default.

Delivery of copy of agreement

19(1)       As soon as possible after a loan agreement required by section 13 or 14 is received by the credit grantor or his agent, and, in any event, not later than the time of the first advance made by the credit grantor thereunder, the credit grantor shall give a true copy of the loan agreement to the borrower; but if there is more than one borrower, it is sufficient to give a copy to one of them.

Right to accounting

19(2)       A borrower is entitled upon request to obtain from a lender, his successors or assigns, at least once during any calendar year, or at any time where a dispute arises between the borrower and lender, a detailed account of the borrower's indebtedness to the lender under section 13 or 14.

Director may order accounting

19(3)       Where a lender within 30 days after a request is made under subsection (2) fails, refuses or neglects to provide the accounting requested the borrower may refer the matter to the director who may order the lender to provide the accounting in accordance with subsection (2) and within such time as may be specified by the director.

Payments on borrower's account as cost of borrowing

20          For the purposes of clauses 13(2)(d) and (e) for an agreement or a variable rate agreement, a payment made to another person for the borrower's account is part of the cost of borrowing if it is made to discharge a liability that the borrower would not have incurred if there had been no loan made to him, or deemed to be made to him, under section 14, as the case may be.

Compliance with requirements for agreements

21          Except as may otherwise be provided by regulation, if a writing or agreement required by section 4, 5, 12, 13 or 14 states in an intelligible manner the information required by the applicable section, or by any other provision of this Part, it is not necessary that it should set it out in any particular order, except that in a transaction to which subsection 14(3) applies, the information mentioned in clause (a) thereof shall be stated first.

Proof of insurance

22(1)        A credit grantor shall forward promptly the application for any insurance that is charged to a borrower and does not form part of the cost of borrowing; and he shall furnish proof of the insurance to the borrower as soon as it is effected.

Liability for insurance premium

22(2)       A borrower is liable to pay to the credit grantor only the premium payable from the time the insurance becomes effective to the date of expiry of the policy or any extension thereof or to the date on which the policy is cancelled; and, where the policy of insurance is cancelled, the debtor shall receive the full amount of the unearned premium calculated by the insurer.

Incorrect statements in agreements

23(1)       Except as otherwise provided in the Interest Act (Canada), and subject to subsections (2) and (3), if a writing required by section 4 or 5

(a) does not contain a statement of the true annual rate of the cost of borrowing or understates it by more than the margin permitted by the regulations; or

(b) omits or states incorrectly any of the information required by clauses 4(a) to (k) or clauses 5(2)(a) to (k), as the case may be, or by section 9;

the seller may recover from the buyer no more than the total cash price with simple interest thereon, or on so much thereof as from time to time remains owing, at the legal rate applied and calculated from the date of the writing, and if the buyer has paid the seller more than that amount, he may recover the excess from the seller or if the writing has been assigned, from the assignee.

Inadvertent mistakes in cost of borrowing

23(2)       Where clause (1)(a) applies, the court may permit the seller to recover, or to keep, as the case may be, more than the total cash price and simple interest thereon at the legal rate if it is satisfied that the omission or misstatement was due to inadvertence; but the seller may not, in any case, recover or keep a cost of borrowing which would exceed the rate stated in the writing to be the true annual rate.

Inadvertent mistakes in other statements

23(3)       Where clause (1)(b) applies, the court may permit the seller to recover, or keep, as the case may be, the full amount that the buyer has agreed to pay, if it is satisfied that the omission or misstatement was due to inadvertence and the buyer has not thereby been misled as to the amount he had to pay; but where the result of a misstatement is to produce, in the writing, inconsistencies that make it uncertain how much the buyer has to pay, the seller may not, in any event, recover from the buyer more than the lowest amount which the writing can reasonably be construed to require.

Investigation of inadvertent mistakes

23(4)       Where a seller claims that any omission or misstatement was due to inadvertence, the court shall not adjudicate thereon until the director has been advised thereof, and he has made any investigation he may consider appropriate.

Appearance by director

23(5)       Where subsection (4) applies, the director may attend by counsel at the hearing and adduce such evidence as he desires; and if, in the result, the court is not satisfied that the omission or misstatement was due to inadvertence, it may order the seller to pay the director's costs.

Understatement of cost of borrowing rate on variable credit

24(1)        Except as otherwise provided in the Interest Act (Canada), where any master agreement required by section 12 understates the true annual rate of the cost of borrowing by more than the margin permitted by the regulations, the borrower is not required to pay charges calculated at any rate greater than the legal rate of interest.

Where no master agreement on variable credit

24(2)       Except as otherwise provided in the Interest Act (Canada) or in section 12, a credit grantor who extends variable credit in a transaction to which section 12 applies otherwise than in pursuance of either

(a) a master agreement that complies with section 12; or

(b) a written agreement made prior to the commencement of this Act;

may not recover from the borrower any cost of borrowing.

Cost of borrowing on variable credit restricted

24(3)       A credit grantor who has extended variable credit in a transaction to which section 12 applies shall not exact, or attempt to exact, from the borrower payment of any cost of borrowing in excess of the amount permitted by this Act or by the Interest Act (Canada).

Recovery of excess interest paid

24(4)       Where a credit grantor who has extended variable credit in a transaction to which section 12 applies receives from the borrower payment of any cost of borrowing in excess of the amount permitted by this Act or by the Interest Act (Canada), the borrower may recover from the credit grantor the amount of such excess.

Loans not in writing or at wrong rate

25(1)       Except as otherwise provided in the Interest Act (Canada), where a loan to which section 13 applies

(a) is not evidenced by a loan agreement or variable rate agreement containing the information required by clauses 13(2)(a) to (i); or

(b) is evidenced by a loan agreement or variable rate agreement that understates the true annual rate of the cost of borrowing by more than the margin permitted by the regulations;

the credit grantor may recover no more than the aggregate of the amount advanced to the borrower himself and any amount properly advanced to any other person for the borrower's benefit, with interest thereon at the legal rate.

Refinancing not properly stated

25(2)       Except as otherwise provided in the Interest Act (Canada), where a transaction to which section 14 applies

(a) is not evidenced by an agreement containing the required information; or

(b) is evidenced by an agreement that understates the true annual rate of the cost of borrowing by more than the margin permitted by the regulations;

the transaction is voidable at the option of the borrower; and if the borrower elects to avoid it, the credit grantor may recover no more than the aggregate of

(c) the amount properly payable under the terms of the obligation being rearranged; and

(d) the amount of any additional loan, if subsection 14(2) is applicable, or the total cash price of the goods and services sold to the borrower, if subsection 14(3) is applicable, with interest thereon at the legal rate.

Recovery of excess costs of borrowing

25(3)       Where a credit grantor, in a transaction to which section 13 or 14 applies, receives from the borrower payment of any cost of borrowing in excess of the amount permitted by this Act or by the Interest Act (Canada), the borrower may recover from the credit grantor the amount of excess.

Definition of "advertisement"

26(1)       In this section "advertisement" includes

(a) any price tag, ticket or notice attached to or displayed near the goods;

(b) any advertisement in a newspaper, magazine or other publication circulated in Manitoba, and any other form of notice circulated to residents of any area in Manitoba; and

(c) any message broadcast by television or radio that can reasonably be expected to be received by the public in Manitoba.

Certain restrictions on advertising

26(2)       No advertisement of goods for retail sale on credit, or for retail hire purchase under section 4, 5, 12 or 14 and no advertisement for loans under section 13 or 14 shall state an amount of loan, the monthly or periodic payment, any reference to the cost of borrowing, or any one or more of them unless it also states

(a) in the case of retail sales on credit or retail hire purchase

(i) the total cash price of the goods or services;

(ii) the aggregate cost to be paid by the credit buyer or hirer in the transaction;

(iii) the number, amount and total sum of the monthly or periodic payments required; and

(iv) the cost of borrowing expressed as one sum in dollars and cents and as a rate percentage per annum calculated in accordance with the regulations; and

(b) in the case of loans

(i) the amount of the loan;

(ii) the number, amount and total sum of the monthly or periodic payments required; and

(iii) the cost of borrowing expressed as one sum in dollars and as a rate percentage per annum calculated in accordance with the regulations.

Print size to be easily readable

26(3)       The statements which are required by subsection (2) to be included in an advertisement shall in all cases be printed in a size which makes them easily readable and shall in the case of an advertisement on television be displayed for a reasonable length of time.

Certain alternative arrangements prohibited

26(4)       Where a seller or lender advertises any terms, conditions or costs of borrowing in any credit arrangement that may be available to a buyer or borrower and such terms, conditions or costs are not made available to a buyer or borrower as advertised, the seller or lender shall not offer or undertake to make alternative arrangements, or participate in any way in making alternative arrangements, whereby the buyer or borrower may incur more than one debt in making the purchase or loan unless

(a) the terms and conditions of the alternative arrangement are at least as favourable as those advertised; and

(b) the seller guarantees that as long as the buyer fulfils his obligations under the arrangement, the terms and conditions thereof shall remain in force throughout the entire period of indebtedness.

Offence in advertising

27(1)       Subject to subsection (2), no person carrying on business in Manitoba shall advertise or cause others to advertise his goods in a manner prohibited by section 26.

Exception

27(2)       Where a person also carries on business outside Manitoba, subsection (1) does not apply to any advertisement of his goods that either

(a) is contained in a newspaper or magazine circulating principally in a particular locality outside Manitoba; or

(b) states expressly that the credit terms offered do not apply in Manitoba.

Onus of proof

27(3)       Where any advertisement of the goods of a person carrying on business in Manitoba is contained in a newspaper or magazine published outside Manitoba, or is sent by mail from a point outside Manitoba, or is broadcast from outside Manitoba, the onus of proof lies on that person to prove that he did not cause his goods to be so advertised.

PART II

PREPAYMENT PRIVILEGES

Application of section

28(1)       This section applies to

(a) every debt which arose out of a transaction to which sections 4, 5 or 13 or subsections 14(1), (2) or (3) applies; and

(b) to every debt owing before this Act came into force and to which those provisions or any of them would have applied if they had been in force at the time the transaction took place if the credit grantor accepts full prepayment of the balance owing after this subsection comes into force.

Prepayment and rebate

28(2)       The borrower may at any time prepay the whole of the balance then owing on any debt to which this section applies; and in so doing he is entitled to a rebate equal to the unearned portion of the cost of borrowing calculated in accordance with the regulations, less the allowance permitted to the credit grantor by subsection (3).

Credit grantor's allowance

28(3)       The allowance to the credit grantor on prepayment referred to in subsection (2) is one-half of the unearned portion of the cost of borrowing, but in no case more than $10.

Deducting rebate from payment

28(4)       A borrower who is prepaying a debt under this section may deduct the rebate to which he is entitled from his payment and tender to the grantor the net amount required to effect the prepayment.

Statement of prepayment

28(5)       A credit grantor shall furnish, on request, to any borrower who is entitled under this section to prepay a debt to him, a statement showing the net amount required to effect the prepayment and how that amount is arrived at.

Prepayment of variable credit

29          A borrower to whom variable credit has been extended may, at the time when any periodic payment falls due, pay off the whole or any part of the balance owing.

Surrender of security

30          Where a borrower has prepaid or paid off the whole of a balance owing under section 28 or 29, the credit grantor shall surrender or discharge any security that he holds for the indebtedness without further charge to the borrower; except that the credit grantor need not register any document required to effect the surrender or discharge, but may deliver it to the borrower, who shall bear the registration fee thereon.

PART III

RELIEF AGAINST ACCELERATION AND FORFEITURE

Application of Part

31(1)       This Part applies to any debt owing by a borrower to a credit grantor that is payable by instalments, other than

(a) a debt secured on real property;

(b) a debt that arose out of a sale of real property; and

(c) a debt owed by a corporation.

Definition

31(2)       In this section "real property" includes leasehold interests in real property.

Default charges

32(1)       No agreement creating or relating to a debt to which this Part applies shall provide for any charge to be paid upon any default in payment of an instalment, unless it is expressed as an annual rate on the amount in arrears and the annual rate is applied to the actual amount in arrears for the number of days that the default continues.

Restrictions on default charges

32(2)       Where the debt arises out of a transaction to which any provision of Part I applies, the annual rate of default charges shall not exceed the annual rate of the cost of borrowing.

Penalty

32(3)       Where the agreement states the default charge otherwise than as an annual rate on the amount in arrears, or, in a case to which subsection (2) applies, states an annual rate greater than is permitted by that subsection, the credit grantor may not recover any default charge in excess of an amount equal to interest at the legal rate on instalments in arrears.

Acceleration on default

33(1)       Subject to the restrictions hereinafter set forth, any provision in an agreement providing that, in the event of default in payment of an instalment, the full balance will or may become immediately due and owing is valid and enforceable.

Restrictions on acceleration

33(2)       The restrictions to which reference is made in subsection (1) are as follows:

(a) Where the debt arises out of a sale of goods or of goods and services, or a hire-purchase of goods and the seller has not seized the goods or commenced an action to recover the balance of the debt, the buyer may pay the instalments in arrears with the default charges thereon as provided in section 32; and, in that event, payment of the balance shall not be accelerated by reason of any default so remedied.

(b) Where the debt arises out of a sale of goods or of goods and services or a hire-purchase of goods, and the seller is entitled to seize the goods and has so seized them, he shall proceed in accordance with section 46 or 47; and, if the buyer redeems the goods in accordance with those sections, payment of the balance shall not be accelerated by reason of any default so remedied.

(c) Where the debt is secured by a chattel mortgage, the mortgagor is entitled to relief from acceleration as provided in section 14 of The Mortgage Act.

(d) In any other case, the borrower may, at any time before an action is commenced to recover the balance of the debt, pay the instalments then in arrears with the default charges thereon as provided by section 32; and in that event payment of the balance shall not be accelerated by reason of any default so remedied.

(e) In any case in which an action has been commenced to recover the balance of the debt, the court may grant relief against acceleration on such terms as it sees fit.

(f) In any case in which a credit grantor is claiming accelerated payment, and the borrower does not make the payments required to obtain relief under clause (a), (b), (c) or (d), or is not granted relief under clause (e), as the case may be, the credit grantor may not recover more than the aggregate of

(i) the amount which the borrower would have had to pay in order to prepay the whole balance of the debt at the time of the default on which the claim for acceleration is based;

(ii) interest thereon from the time of default at the annual rate of the default charges on payments in arrears provided in the agreement or, if no rate is so provided, at the legal rate; and

(iii) any expenses actually incurred by the credit grantor as a result of the default and his taxable costs of the action, if any.

Default after extension

33(3)       In any case in which a borrower has been granted an extension of time, the time of default referred to in sub-clause (2)(f)(i) is the time when the borrower fails to comply with the terms of such extension.

Meaning of "payments in default"

33(4)       Except where expressly so stated, references in this Act to payments in default do not include any payments that have become due by virtue of any provision for the acceleration of payments.

Acceleration provisions continue in effect

33(5)       A provision for acceleration of payments on default operates from time to time as and when default occurs; and the circumstance that a borrower has been relieved from acceleration in accordance with this section shall not be taken to have exhausted the operation of the provision in respect of subsequent defaults.

Other penalties void

34          Any provision in an agreement creating or relating to a debt payable by instalments to which this Part applies that imposes on the borrower, as a consequence of default in payment of an instalment, any pecuniary penalty that is not permitted by sections 32 and 33, is void.

Damages for breach of obligation

35(1)       Where an agreement creating or relating to a debt imposes on the borrower any obligation in addition to the payment of the debt and the cost of borrowing, if any, and the borrower commits a breach of the obligation, the credit grantor may recover from the borrower as damages for the breach, the amount of the loss he has suffered, and the actual expenses he has incurred as a result of the breach, but not more.

Penalty for breach

35(2)       Every provision in an agreement creating or relating to a debt that imposes on the borrower a pecuniary penalty, howsoever described, for committing a breach of an obligation in addition to the payment of the debt, imposed on the borrower by the agreement, is void in so far as it would entitle the credit grantor to recover more than the amount permitted by subsection (1), but is effective to prevent the credit grantor from recovering more than the amount of the penalty so specified.

Relief against acceleration, seizure and forfeiture

36          Where an agreement creating or relating to a debt imposes on the borrower an obligation in addition to the payment of the debt, and provides that, in the event of a breach thereof,

(a) payment of the debt shall be accelerated; or

(b) the credit grantor may seize or take possession of any goods; or

(c) the interest of the borrower in any goods is or may be forfeited;

the court may relieve the borrower from the effect of the provision on such terms as it thinks just.

Absolute discretion of creditor

37(1)       Every provision in an agreement creating or relating to a debt that gives, or has the effect of giving, the credit grantor the right to decide whether any given fact or circumstance exists is void.

Powers to preserve security

37(2)       Notwithstanding subsection (1), an agreement may contain a provision that, if the credit grantor has reasonable cause to believe that the security for the debt is in jeopardy,

(a) payment of the debt shall be accelerated; or

(b) the credit grantor may seize or take possession of any goods; or

(c) that the interest of the borrower in any goods is or may be forfeited;

or any or all of those provisions; and, in that case, it is a question of fact for the court whether or not the credit grantor has reasonable cause for such a belief; but, if he has such cause at the relevant time, it is immaterial whether or not the security is actually in jeopardy.

Relief against powers

37(3)       The court may relieve the borrower from the effect of a provision mentioned in subsection (2) on such terms as it thinks just.

Granting relief

38          The court may grant relief under sections 36 and 37 at any time, and may do so either in a proceeding commenced by the credit grantor to enforce his security or on an application by the borrower; but if the credit grantor gives the borrower written notice which

(a) specifies the breach complained of, or the facts relied on as giving reasonable cause for the credit grantor's belief, as the case may be;

(b) informs the borrower of his right to apply for relief; and

(c) requires the borrower to apply for such relief within 20 days;

the borrower's right to apply for relief expires at the end of those 20 days.

Staying of seizure or action

39(1)       Where a credit grantor attempts to seize any goods or commences an action with respect to those goods or the payment of moneys owing thereon, the borrower may pay the instalments in arrears together with the default charges thereon as provided in section 32 and his taxable costs in the action, if any, whereupon the seizure or action shall be stayed.

Return of seized goods where default remedied

39(2)       Where a credit grantor seizes any goods and the borrower remedies the default or otherwise obtains relief under this Part, the credit grantor shall return the goods to the borrower on payment by the borrower, in addition to any other payment required by this Part, of the costs of seizure in an amount not exceeding that permitted by The Distress Act.

PART IV

TIME SALES

Content of time sale agreement

40(1)       Subject to sections 42 and 43, every time sale shall be evidenced by a time sale agreement in writing signed by the buyer or his agent prior to, or at the time of, delivery of the goods, containing a description of the goods by which they may be readily and easily known and distinguished, and also containing, in type not less than 10 point in size,

(a) a statement that the property in the goods is not to pass to the buyer on delivery;

(b) the conditions upon which the property in the goods is to pass to the buyer; and

(c) the events upon which the seller may, before the property therein has passed to the buyer, repossess the goods.

Delivery of copy to buyer

40(2)       The seller shall give a copy of the agreement to the buyer, or to the agent who signed it, not later than the time of delivery of the goods; but if there is more than one buyer, it is sufficient to give a copy to one of them.

Compliance with other requirements

41          Every time sale agreement to which section 4 or 5 or subsection 14(3) is applicable shall also contain the information required thereby.

Time sale under master agreement

42          Subject to section 43, where a seller extends variable credit under a master agreement that provides that all goods sold thereunder are sold on time sales, it is not necessary for the buyer to sign a time sale agreement for any purchase made under that master agreement if

(a) the master agreement contains, in type not less than 10 point in size, the statements and information required by clauses 40(1)(a), (b) and (c); and

(b) there is delivered to the buyer, or his agent, or to one of the buyers, if there is more than one of them, prior to, or at the time of, delivery of the goods, a writing that

(i) contains a description of the goods by which they may be readily and easily known and distinguished;

(ii) states the cash price of the goods; and

(iii) indicates that the goods were sold on the terms of the master agreement.

Serial numbers or distinguishing marks

43          Where an article bought on a time sale is one of a series of similar articles that are individually distinguished by a serial number or similar distinguishing mark, and, at the time of purchase, it is not known which particular article will be the one delivered to the buyer,

(a) if the article is sold otherwise than on variable credit, the seller may insert the serial number or distinguishing mark in the agreement after it is signed by or on behalf of the buyer, and if that is done after the copy of the agreement required by section 40 has been given to the buyer, the seller shall give a second completed copy of the agreement to the buyer; but the serial number or distinguishing mark shall be inserted in the agreement and the second copy given to the buyer not later than 20 days after delivery of the article; and

(b) if the article is sold on variable credit, the serial number or distinguishing mark may be omitted from the writing required, by section 42, to be given to the buyer; but a copy of the writing containing the number or mark shall be given to the buyer not later than 20 days after delivery of the article.

Non-compliance with secs. 40, 42 or 43

44(1)       Subject to subsections (2), (3) and (4), a time sale that does not comply with section 40 or 42 or 43 takes effect as an immediate sale, and the property in the goods passes to the buyer on delivery, and the seller has no lien on the goods; but this does not affect the buyer's obligation to pay for the goods in accordance with the terms of the agreement.

Partial effect of seller's lien

44(2)       Where a time sale includes more than one separate article, and the only non-compliance with section 40, 42 or 43, as the case may be, is a failure to give a proper description of one or more of the articles, the reservation of the seller's lien is effective in regard to the articles that are properly described, and subsection (1) applies only to the articles that are not properly described.

Correction of description by consent

44(3)       The buyer may, at any time, consent in writing to the correction of an error or omission in the description of any goods in a time sale agreement; and, on receipt of the consent, the seller may correct the original agreement accordingly; and, for the purposes of this section, the agreement shall be deemed to have been originally written as so corrected, except that no such correction prejudices any rights in or to the goods that may have been acquired before the date of the correction by any other person claiming through the buyer who does not consent in writing to the correction.

Correction of description by court

44(4)       The court, on being satisfied that an error or omission in the description of any goods in a time sale agreement was due to inadvertence and that the buyer accepted the goods and was not misled by the error or omission, may order the description in the original agreement to be corrected; and for the purposes of this section the agreement shall be deemed to have been originally written as so corrected; but every such order shall contain whatever provisions the circumstances of the case may require to protect any person who may have acquired, in good faith through the buyer, a right in or to the goods adverse to the seller's title which would be prejudiced by the correction.

Seller not prejudiced by variations

44(5)       Where

(a) a variation in a time sale agreement, other than in the description of the goods, is made by agreement in writing between all persons affected thereby; or

(b) goods sold on a time sale that have been repossessed by the seller are returned to the buyer pursuant to any provision of this Act; or

(c) the court extends the time for payment of the balance owing on a time sale pursuant to this Act; or

(d) a buyer on a time sale who has defaulted obtains any other relief under this Act;

the seller's title to the goods remains in full force and effect as reserved by the time sale agreement; and his remedies in respect to future defaults by the buyer are not affected thereby.

Chattel mortgage for purchase price

45(1)       Where a seller on a retail sale of goods takes back a chattel mortgage on those goods to secure payment of the whole or part of the price, the chattel mortgage shall state clearly and explicitly that it is given for that purpose.

Prohibition

45(2)       No seller shall take a chattel mortgage that does not comply with subsection (1).

Waiting period after seizure

46(1)       Subject to subsection (3), where a seller on a time sale has repossessed the goods by reason of the buyer's default in payment, he shall retain them for 20 days after the giving of the notice required by subsection (2), during which time the buyer may redeem them on payment of

(a) any payments then in default;

(b) any default charges that have become payable thereon; and

(c) the actual expenses of taking and keeping possession not exceeding the amount allowed by The Distress Act.

Notice of seizure

46(2)       Within 48 hours after repossessing any goods, the seller shall give written notice to the buyer stating

(a) that the goods have been repossessed;

(b) the date on which they were repossessed;

(c) the amount required to redeem them, showing how this amount is made up;

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

(e) the place where the goods are, or are to be kept.

Resale with consent of buyer

46(3)       The seller may resell the goods during the 20 days with the written consent of the buyer, given not less than 24 hours after the goods were repossessed.

Notice if more than one buyer

46(4)       Where goods are repossessed on a time sale agreement involving more than one buyer or a guarantor, the notice required to be given under subsection (2) shall be given to all buyers and guarantors.

Rights of buyer on seizure

47(1)       Where a seller on a time sale has repossessed the goods

(a) by reason of a breach by the buyer of the time sale agreement other than default in payment; or

(b) pursuant to a provision in the agreement entitling him to repossess the goods if he has reasonable cause to believe that his security thereon is in jeopardy;

the buyer may, subject to this section,

(c) redeem the goods by remedying the breach or taking the requisite action to ensure the safety of the seller's security thereon; or

(d) apply to the court for relief under sections 36 and 37.

Notice of seizure

47(2)       Within 48 hours after repossessing the goods, the seller shall give to the buyer a written notice that

(a) contains the statements and information required under clauses 38(a), (b) and (c); and

(b) specifies the action that the seller requires the buyer to take to remedy the breach, if it is capable of remedy, or to ensure the safety of the seller's security on the goods, as the case may be.

Right to redeem

47(3)       Within 20 days after the giving of the notice required by subsection (2), the buyer may

(a) redeem the goods by taking the action required by the seller in his notice and paying the seller's actual expenses of taking and keeping possession, not exceeding the amount allowed by The Distress Act; or

(b) apply to the court for relief.

Court may relieve

47(4)       Where the buyer applies to the court for relief pursuant to subsection (3), the court may, if it sees fit, relieve the buyer against the consequences of the repossession by ordering the seller to return the goods to the buyer, either unconditionally or subject to the fulfilment by the buyer of such conditions as the court may see fit to impose.

Costs

47(5)       Where the court has ordered the seller to return the goods to the buyer unconditionally and the court is of the opinion that the buyer's breach of the agreement did not prejudice the seller or that the seller did not have reasonable cause to believe that his security on the goods was in jeopardy, as the case may be, the court may order the seller to pay the buyer's costs of the application.

Reckoning time for notice

48          In reckoning the periods of 48 hours prescribed by sections 46 and 47, Saturdays, Sundays and holidays shall be excluded.

Leave required for seizure

49(1)       Where a seller on a time sale would be, but for this section, entitled to repossess any goods, and the balance owing by the buyer on those goods at that time is less than 25% of the cash price of the goods at the time of the sale thereof, the seller may not repossess the goods without either the leave of the court or the written consent of the buyer given at the time of repossession.

Notice of application for leave

49(2)       The seller shall give notice to the buyer of his application for leave required under subsection (1), unless

(a) the buyer cannot be found or is evading service; or

(b) there is reasonable cause to believe that the buyer might hide the goods or otherwise attempt to evade repossession thereof if he had notice of the application; or

(c) the court for any other reason sees fit to dispense with notice;

in which event the court may give leave to repossess on the ex parte application of the seller.

Setting aside ex parte order

49(3)       Where leave to repossess is given ex parte, the order giving the leave may be set aside upon the application of the buyer, initiated not later than

(a) 20 days after the buyer has notice of the making of the order; or

(b) 90 days after the goods are repossessed;

whichever is the earlier; and the seller shall at, or as soon as possible after, the time of repossession, give to the buyer a copy of the order and a notice, in a form approved by the judge who made the order, of the buyer's rights under this subsection.

Considerations by court

49(4)       In deciding whether to grant leave to repossess, or to set aside an order made ex parte, the court shall consider all relevant circumstances, including

(a) the present value of the goods;

(b) the amount already paid by the buyer;

(c) the balance owing by the buyer;

(d) the reasons for the buyer's default; and

(e) the present and likely future financial circumstances of the buyer and of the seller;

and the court may permit the buyer to keep the goods, or, if they have been repossessed pursuant to an order made ex parte, to redeem them, on such terms as it sees fit and may extend the time for payment by the buyer of the balance owing; but if it grants an extension, the court shall require the buyer to pay such additional amount as may be necessary to compensate the seller for the extension.

Sections 46 and 47 not to apply

49(5)       Where any goods are repossessed pursuant to this section, sections 46 and 47 do not apply to the repossession.

Delivery of notice, etc.

50(1)       A notice required by section 46 or 47, and the copy of the order and notice required by section 49, may be given to the buyer

(a) by delivering it personally to the buyer or to his spouse or common-law partner; or

(b) if the goods are in a dwelling at the time of repossession, by delivering it to any adult person who is present at the time of repossession and appears to reside in the dwelling; or

(c) by mailing it, by registered mail, addressed to the buyer at his last known address, in which case it shall be deemed to be given on the next business day after the date of mailing.

Where notice late

50(2)       Where a seller fails to give the notice required by section 46 or 47 within the time required, the repossession of the goods is not invalidated; but the time allowed to the buyer to redeem the goods or to apply to the court is extended until the expiration of 20 days from the day on which the requisite notice is given.

Extension of time for redemption

50(3)       The court may extend the time allowed by sections 46 and 47 to a buyer to redeem the goods or apply for relief, and the time allowed by section 49 to a buyer to apply to set aside an ex parte order; but the court shall not grant the extension unless it is satisfied that the seller will not be prejudiced thereby.


S.M. 2002, c. 24, s. 13.

Protection removed

51(1)       Where a buyer has persistently defaulted on his obligations under the time sale agreement or master agreement in question, or has deliberately evaded repossession of the goods, the court, on the application of the seller, may deprive the buyer in whole or part of the protection of sections 33, 46, 47 and 49.

Order made when buyer absent

51(2)       Where the buyer does not appear on the hearing of an application under subsection (1), an order made on the application is not effective until a copy of the order has been served on the buyer in a manner approved by the court.

Substitutional service

51(3)       Nothing in subsection (2) diminishes the court's power to order substitutional service.

Right of buyer to move or charge goods

52(1)       Subject to subsection (2), every provision in a time sale agreement or in a master agreement that prohibits or restricts, or has the effect of prohibiting or restricting, the buyer from

(a) removing the goods to any place within Manitoba; or

(b) charging his interest in the goods;

is void.

Restriction on moving and charging goods

52(2)       A time sale agreement or a master agreement may provide that the buyer may not

(a) remove the goods from any particular place or area; or

(b) charge his interest in the goods;

unless he gives to the seller by registered mail, addressed to the seller at the address specified in the agreement, at least 10 days before so doing, written notice of his intention to do so, specifying the place to which he intends to remove the goods, or the person in whose favour he intends to charge them, as the case may be.

Order to protect seller's interest

52(3)       On receipt of any notice given pursuant to subsection (2), the seller, if he believes he will be prejudiced by the intended action therein specified, may apply to the court, and the court may make whatever order may seem just to protect the interests of the seller and of the buyer.

No right to sue after seizure

53(1)       Subject to subsection (2), where a seller under a time sale repossesses the goods comprised in the time sale, or any portion thereof, his right to recover any balance, whether of the price or of the cost of borrowing or both, owing on the goods so comprised is thereafter limited to his lien on the goods and his right to repossession and sale thereof; and no action is thereafter maintainable by the seller to recover the balance or any part thereof.

Restoration of seller's rights

53(2)       Where the seller repossesses the goods and the buyer subsequently redeems them or they are returned to him pursuant to an order of the court, or as the result of the setting aside of an ex parte order under section 49, the seller is, for the purposes of subsection (1), restored to his former position and, in the event of any subsequent default by the buyer, may proceed as if the goods had not been previously repossessed.

Judgment extinguishes lien on goods

53(3)       Subject to subsection (4), where a seller on a time sale obtains judgment in any action for the whole or any part of the balance, whether of the price or of the cost of borrowing or both, owing on any goods comprised in the time sale, his lien on the goods comprised in that sale is extinguished on the date of the judgment; and the property in the goods thereupon passes to the buyer.

Exemption from subsec. (3)

53(4)       Where an action brought by the seller was for the full amount then owing by virtue of an acceleration provision, and the court relieves the buyer or hirer from the acceleration, it may, as one of the conditions of granting the relief, exempt the seller either wholly or partially from the operation of subsection (3).

Execution of collateral under judgment

53(5)       Where a seller has obtained a judgment for the whole of the balance, and the goods comprised in the sale, or any of them, are seized under an execution issued pursuant to that judgment, the seller's right to recover under the judgment, in so far as it is based on that balance, is limited to the amount realized from the sale of the goods so seized, and the judgment, to the extent that it is based on that balance and taxed costs, shall be deemed to be fully paid and satisfied; but, where the amount realized from the sale of the goods exceeds the amount of the judgment and the costs of execution, the excess shall be paid to the buyer, or to subsequent execution creditors, as the case may be.

Judgment for part of balance

53(6)       Where a seller has obtained judgment for only a part of the balance, and the goods comprised in the sale, or any of them, are seized under an execution issued pursuant to that judgment, the seizure operates not only to satisfy the judgment as provided by subsection (5), but also to extinguish the seller's right to maintain any action for the remainder of the balance; but, in that case, if the amount realized from the sale of the goods exceeds the amount of the judgment and the costs of execution, the excess shall be paid into court, and the court may order it to be paid out in such manner as may be just.

Exemption from subsecs. (1), (5) and (6)

53(7)       Where only some of the goods comprised in a time sale agreement are repossessed by the seller or are seized under the execution, and the reason why the others are not repossessed or seized is that the seller or the sheriff or bailiff, as the case may be, is unable to find them, the court may exempt the seller either wholly or partially from the operation of subsection (1) or of subsections (5) and (6), as the case may be.

Where collateral damaged

53(8)       Where any of the goods have been destroyed or damaged by the deliberate act or wilful neglect of the buyer, the seller may, notwithstanding subsections (1), (5) and (6), recover from the buyer, the lesser of

(a) the balance owing on the agreement or judgment, as the case may be; or

(b) the value of the goods destroyed, or of the damage done.

Removal or replacement of collateral

54          Where a buyer has removed from any article sold on a time sale an accessory or component that was included in the sale, and has not replaced it by another of a like kind and value, or has replaced it by one that is itself subject to a lien or charge held by another person, and the article has been repossessed by the seller or seized under an execution issued at the suit of the seller, the seller may, notwithstanding section 53, maintain an action to recover the least of

(a) the value of the accessory or component removed, allowing for depreciation; or

(b) the amount owing on the lien or charge on the replacement held by another person; or

(c) the amount by which the sum realized by the sale of the goods falls short of the balance owing thereon, or of the amount of the judgment and costs of execution, as the case may be.

Resale of seized collateral

55(1)       Where a seller has lawfully repossessed goods sold on a time sale, and the buyer has not redeemed them within the time allowed for that purpose, the seller may resell them.

Price for resale of collateral

55(2)       A seller who resells goods must act in good faith and when the goods are sold he shall forthwith give a complete accounting of the sale to the buyer including such detail as may be required by regulation and at the same time pay any excess due to the buyer under subsection (3).

Payment of excess to buyer

55(3)       Where the amount realized on the resale of the goods exceeds the balance owing on the goods and the expenses of taking and keeping possession and of resale, the excess shall be paid by the seller to the buyer.

Cost of repair

55(4)       Where the seller has the goods repaired before reselling them, the cost thereof is part of the expenses of sale.

Charge of overhead

55(5)       Where the seller resells the goods by retail in the ordinary course of his business, he may charge, as an allowance for the overhead expenses of resale, 20% of the proceeds of sale.

Retention in lieu of resale

55(6)        Where the seller is unable to resell the goods at a price sufficient to satisfy the balance owing on them and the expenses of taking and keeping possession and of resale, the seller may keep the goods and use them as he sees fit.

Disposal of goods

55(7)       Where goods are repossessed by the assignee of the seller and the goods are sold or otherwise disposed of to the seller, the seller shall fulfil the obligations required under this section but where the goods are sold or otherwise disposed of by the assignee, the assignee shall fulfil the obligations required of the seller under this section.

Additional collateral on time sale prohibited

56(1)       No part of the price of any goods comprised in a time sale that is not made on variable credit, or of the cost of borrowing thereof, may be secured on any goods not comprised in that time sale; and any provision or arrangement that purports to do so is void.

Rights in excess collateral under variable credit

56(2)       Every provision in a master agreement relating to variable credit under which the seller may

(a) acquire title to, possession of, or any rights in, any goods of the buyer, other than goods bought or hired by him under that master agreement; or

(b) retain any title to, a right to repossess, or any other rights in, any article bought or hired by the buyer under that master agreement after the article has been paid for in full;

is void.

Demand payments

56(3)       Except with the prior consent of the director, no time sale agreement shall provide that the balance owing, or any part thereof, is payable on demand; and any time sale agreement that contravenes this subsection takes effect as an immediate sale, and the property in the goods passes to the buyer on delivery, and the seller has no lien on the goods; but this does not affect the buyer's obligation to pay for the goods in accordance with the terms of the agreement.

PART V

CHATTEL MORTGAGES

Leave to repossess

57(1)       Where a mortgagee of goods would be, but for this section, entitled to seize the mortgaged goods and the balance owing by the mortgagor on the mortgage is less than 25% of the total monetary liability of the mortgagor originally secured thereby, the mortgagee may not repossess the goods without the leave of the court.

Notice of application for leave

57(2)       A mortgagee of goods shall give notice to the mortgagor of his application for leave under subsection (1) unless

(a) the mortgagor cannot be found, or is evading service; or

(b) there is reasonable cause to believe that the mortgagor might hide the goods or otherwise attempt to evade seizure thereof if he had notice of the application; or

(c) the court for any other reason sees fit to dispense with the notice;

in which event the court may give leave to seize on the ex parte application of the mortgagee.

Setting aside order for leave to seize

57(3)       Where leave to seize is given ex parte under subsection (2), the order giving the leave may be set aside upon the application of the mortgagor initiated not later than

(a) 20 days after the mortgagor has notice of the making of the order; or

(b) 90 days after the goods are seized;

whichever is the earlier; and the mortgagee shall at, or as soon as possible after, the time of seizure give to the mortgagor a copy of the order and a notice, in a form approved by the judge who made the order, of the mortgagor's rights under this subsection.

Considerations of court

57(4)       In deciding whether to grant leave to seize, or to set aside an order made ex parte, the court shall consider all relevant circumstances, including

(a) the present value of the goods;

(b) the amount already paid by the mortgagor;

(c) the balance owing by the mortgagor;

(d) the reasons for the mortgagor's default; and

(e) the present and likely future financial circumstances of the mortgagor and of the mortgagee.

Conditions of leave to seize

57(5)       Where the court grants leave to seize, it may order the mortgagee to offer the goods for sale in such manner and on such terms as it sees fit.

Extension of time to pay

57(6)       Where the court refuses leave to seize, or sets aside an order giving leave made ex parte, the court may extend the time for payment by the mortgagor of the balance owing; but in granting the extension, the court shall require the mortgagor to pay such additional amount as may be necessary to compensate the mortgagee for the extension.

Delivery of notice, etc.

57(7)       The copy of the order and notice required by subsection (3) may be given to the mortgagor in the same manner as is provided in section 50 for giving a notice to a buyer.

Extension of time to set aside order

57(8)       The court may extend the time allowed by subsection (3) to a mortgagor to apply to set aside an ex parte order; but an extension shall not be granted unless the court is satisfied that the mortgagee will not be prejudiced thereby.

Additional rights of mortgagor

57(9)       The rights of a mortgagor under this section are in addition to any he has under sections 36, 37 and 38.

Conflict with sec. 49

57(10)      Where a chattel mortgage is subject to section 49, that section prevails over any conflicting provision of this section.

Mortgagee not prejudiced by variations

57(11)      Where

(a) a variation in a chattel mortgage, other than in the description of the goods, is made by agreement in writing between all persons affected thereby and is registered if and as required by The Personal Property Security Act; or

(b) goods, subject to a chattel mortgage, which have been seized by the mortgagee are returned to the mortgagor pursuant to any provision of this Act; or

(c) the court extends the time for payment of the balance owing on a chattel mortgage pursuant to this Act; or

(d) a mortgagor of chattels who has defaulted obtains any other relief under this Act;

the mortgagee's security on the goods remains in full force and effect as created by the chattel mortgage, and his remedies in respect of future defaults by the mortgagor are not affected thereby.

Repossession prohibited in certain cases

57(12)      Subject to subsections (13) and (14) where a chattel mortgage does not contain all of the information required to be included in the mortgage under this Act, the mortgagee may not repossess the goods without leave of the court in accordance with and subject to the provisions of this section and in such an event the mortgagee shall not recover the costs of the action.

Investigation of inadvertent mistake

57(13)      Where a chattel mortgagee claims that any omission or misstatement was due to inadvertence, the court shall not adjudicate thereon until the director has been advised thereof and has made any investigation he may consider appropriate.

Appearance by director

57(14)      Where subsection (13) applies, the director may attend by counsel at the hearing and adduce such evidence as he desires; and if in the result the court is not satisfied that the omission or misstatement was due to inadvertence, the court shall not grant leave to repossess the goods and in addition may order the mortgagee to pay the director's costs.

Notice by mortgagee in case of repossession

57(15)      Where a mortgagee has repossessed goods other than by leave of the court under subsection (1) or (12), the mortgagee shall give to the mortgagor a notice in the same manner as provided by section 50 for giving notice to a buyer and the mortgagee shall have the same responsibilities as those required of a seller under sections 46, 47 and 48, and the mortgagor has all the rights given under those subsections.

Sale of repossessed goods

57(16)      Where a mortgagee has repossessed goods under a chattel mortgage, he shall have the same responsibilities as those required of a seller under section 55 of the Act and the accounting of the sale required to be given under subsection 55(2) shall include a statement of the balance remaining on the debt owing by the mortgagee after the sale.

Dispute as to realized value

57(17)      Where a mortgagee demands payment of a balance remaining on the mortgagor's debt after the sale of repossessed goods and the parties are unable to agree that the amount realized from the sale of goods was reasonable, the mortgagee shall not make further demand for payment on the mortgagor until the matter shall have been submitted to a court of competent jurisdiction for adjudication.

Exception

57(18)      This Part does not apply where the mortgagor is a corporation.

PART VI

STATUTORY WARRANTIES ON RETAIL SALES

Warranties on sale

58(1)       Notwithstanding any agreement to the contrary, the following conditions or warranties on the part of the seller are implied in every retail sale of goods and in every retail hire-purchase of goods:

(a) In the case of an immediate sale, a condition that he has the right to sell the goods, or, in the case of a time sale, a condition that he has the right to agree to sell or to let on hire the goods, and will have the right to sell them at the time when the property is to pass to the buyer.

(b) In the case of an immediate sale, a warranty that the buyer shall have and enjoy quiet possession of the goods, or, in the case of a time sale, a warranty that the buyer, so long as he fulfils his obligations under the time sale agreement, shall have and enjoy quiet possession of the goods.

(c) A warranty that the goods are free from any charge or encumbrance in favour of any third party except only for any that the buyer has specifically agreed in writing to accept.

(d) A condition that the goods are new and unused unless otherwise described; but in the case of a motor vehicle a description showing that it is more than one year old is sufficient to describe it as used.

(e) A condition that the goods are of merchantable quality, except for such defects as are described.

(f) A condition that the goods correspond with the description under which they are sold.

(g) Where the goods are sold by sample, a condition that the bulk shall correspond with the sample and that the goods are free from any defect that renders them unmerchantable, and that would not be apparent on reasonable examination of the sample, and a condition that the buyer shall have a reasonable opportunity of comparing the bulk with the sample.

(h) Where the buyer expressly or by implication makes known to the seller the particular purpose for which the goods are required, so as to show that the buyer relies on the seller's skill or judgment, and the goods are of a description which it is in the course of the seller's business to supply, whether he is the manufacturer or not, a condition that the goods are reasonably fit for the purpose; but 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.

Statement of conditions

58(2)       For the purposes of clause (1)(e), it is not necessary to specify every defect separately, if the general condition or quality of the goods is stated with reasonable accuracy.

Statements relating to goods on time sales

58(3)       Any statement

(a) that the goods are not new and unused; or

(b) of the age of a motor vehicle; or

(c) of defects in the goods; or

(d) of the general condition or quality of the goods;

shall be a part of the description of the goods for the purposes of sections 4, 5, 40 and 42, and of subsection 14(3); and, where one or more of them applies, none of those statements has any effect unless it is included in the required description of the goods in the agreement or writing; but the statement shall be deemed to be included in the agreement or writing if it is contained in a document that

(e) is clearly identified as an appendix or schedule to the agreement or writing;

(f) is signed by the buyer and the seller;

(g) is attached to and forms a part of the agreement; and

(h) is delivered to the buyer with a copy of the agreement before delivery of the goods.

Statements relating to goods in cash sales

58(4)       Where section 4, 5, 40 or 42 or subsection 14(3) does not apply, a statement of a kind referred to in subsection (3) has no effect unless it is made in writing and

(a) is contained in a notice that is readily visible to the buyer at or before the time of the sale and is so displayed as to make it clear that it refers to the goods; or

(b) is contained in a document that is delivered to the buyer before he accepts the goods.

Merchantable quality

58(5)       Where the goods are described as used in the manner required by this section, there shall be taken into account, in deciding whether they are of merchantable quality,

(a) the fact that they are used; and

(b) the age of the goods as specified in their description, or, if no age is specified, the age of the goods as understood by the buyer at the time of the sale.

Condition as to services

58(6)        Unless otherwise expressly agreed in writing signed by the buyer, there shall be implied in every retail sale of services a condition, on the part of the seller, that the services sold shall be performed in a skillful and workmanlike manner.

Effect on other conditions

58(7)       Nothing in this section excludes or affects any other condition or warranty relating to the goods or services, whether expressed or implied, as between the buyer and the seller or any person claiming through the seller who would, apart from this Act, be held to be bound thereby.

Express warranty

58(8)       Every oral or written statement made by a seller, or by a person on behalf of a seller regarding the quality, condition, quantity, performance or efficacy of goods or services that is

(a) contained in an advertisement; or

(b) made to a buyer;

shall be deemed to be an express warranty respecting those goods or services.

Seller to provide record

58(9)       Where a seller is required under this section to correct any defect or failure in any goods sold or services supplied by him, he shall, on each occasion give at the time of the correction, to the buyer a written record of all items and services that are used to correct the defect or failure at the time of the correction.

Mediation of warranty disputes

58(10)      In any transaction to which this Act refers where there is a dispute between a buyer and seller or a lender and borrower as to any condition or warranty, either or both parties may refer the dispute to the director who shall endeavour by mediation to settle the dispute.

Personal liability of seller

58.1        In every retail sale or retail hire purchase of goods or services, the seller is personally liable to the buyer for all duties, liabilities, obligations and warranties applicable to the sale or hire purchase by this Act or by contract and the seller shall bear all expenses incidental to having the goods serviced under any warranty whether given by the manufacturer, seller or a third party.


R.S.M. 1987 Supp., c. 9, s. 1.

Warranty contract liability

58.2(1)     Notwithstanding any provision in a contract to service or repair goods including an extended warranty contract, and subject to subsection (2), the seller of the contract is liable to the buyer for the performance of all obligations under the contract to service or repair the goods, whether or not the seller is a party to the contract and whether or not the seller received a fee, commission or other remuneration for selling the contract.

Sales person not liable

58.2(2)     Subsection (1) does not render an employee or sales person of a seller personally liable for the performance of all or any of the obligations under a contract to which that subsection applies, notwithstanding that the actual sale of the contract is effected or arranged by the employee or sales person.


R.S.M. 1987 Supp., c. 9, s. 1; S.M. 1989-90, c. 53, s. 11.

PART VII

DIRECT SELLERS

Application of Part

59(1)       Subject to section 60 and to regulations made under clause 97(d), this Part applies to all retail sales or retail hire purchases of goods or services or both entered into by the buyer elsewhere than at the vendors usual place of business and which result from any offer, solicitation, proposal, or approach made, by or on behalf of the vendor

(a) without any prior request by the buyer; or

(b) in response to a request made by the buyer if the request was itself solicited by or on behalf of the vendor.

Certain types of sales subject to Part

59(2)       Without restricting the generality of subsection (1), this Part applies to all sales which are made in or from an agricultural fair, artistic or similar type of exhibition, a trade fair, motor vehicle, shopping mall, parking lot, dwelling, display room, office, hotel, motel or other temporary or short term establishment.

Place of conclusion of sale

59(3)       Although a retail sale is concluded in a vendor's usual place of business, if the buyer receives any personal communication from the vendor or a direct seller representing the vendor elsewhere than at the vendor's usual place of business prior to conclusion of the sale, the sale shall nevertheless be subject to this Part.

Address for service

59(4)       For the purposes of this Part

(a) a listing of the name of a vendor in a telephone, professional or trade directory shall not be deemed to be a solicitation; and

(b) the vendor's usual place of business shall be the address for service required to be given by the vendor under subsection 78(8) and any other address from which the vendor usually conducts his business if the director is satisfied that the use of the other addresses is not for the purpose of avoiding the requirements of this Part or Part X of this Act.

Where Part not to apply

60(1)       This Part does not apply to

(a) sales or hire-purchases of vehicles or trailers within the meaning of The Highway Traffic Act or of farm machinery and equipment to which The Farm Machinery and Equipment Act applies; or

(b) sales of water, propane gas, or fuel petroleum products; or

(c) sales of lumber or coal where the vendor has a place of business in the municipality in which the sale takes place; or

(d) sales of feed grain, feed supplement, fertilizer, or weed spray where the vendor has a place of business in the municipality in which the sale takes place; or

(e) sales of farm produce in Manitoba by a farmer from his own farm; or

(f) sales of services relating to

(i) the raising and care of livestock; or

(ii) the planting, raising or harvesting of crops; or

(iii) any service of a domestic nature, including gardening; or

(g) any sale in which the price is expressly solicited as a contribution to a charitable, philanthropic, or similar cause and not as being a fair price for the goods or services offered; or

(h) sales of goods or services made to a buyer who is engaged in the retail sale of goods or services or both, if the goods or services or both are intended for exclusive use by the buyer in his regular place of business but not for resale unless the buyer is a farmer and The Farm Machinery and Equipment Act does not apply to the sale; or

(i) sales in which the only goods supplied consist of food or food products in a perishable state at the time of delivery;

(j) sales of daily or weekly newspapers by persons who actually make deliveries of the newspapers at periods coincident with the frequency of issue; or

(k) an exemption granted pursuant to a regulation made under clause 97(d).

Certain selling practices prohibited

60(2)       No vendor or direct seller shall give, offer to give or promise to give, directly or indirectly, any gift, premium, prize or other benefit of any kind whatsoever to a buyer of goods or services or both, or to any person on his behalf, on the condition that the buyer or person will provide the vendor with service or assistance of any kind in furthering any attempt by the vendor to make a sale to another buyer.

Prohibition against premiums, etc.

60(3)       No vendor or direct seller shall give or offer to give, directly or indirectly, any gift, premium, prize or other benefit of any kind whatsoever to a buyer or prospective buyer of goods or services, or both, unless

(a) its retail sale value is accurately disclosed to the buyer or prospective buyer and is not included in the price of the goods or services;

(b) it is not contingent upon the prospective buyer making a purchase; and

(c) it does not constitute in any way, any part of the goods or services, or both, that are sold.

Requirements of written agreement

61(1)       If an agreement for a retail sale or retail hire-purchase to which this Part applies is in writing,

(a) it shall be signed by the vendor and the buyer and shall conform with the requirements prescribed by the minister; and

(b) the vendor shall provide a duplicate copy of the agreement to the buyer at the time the agreement is entered into.

Requirements re oral agreement

61(2)       If an agreement for a retail sale or retail hire purchase to which this Part applies is not in writing, the vendor shall provide to the buyer, at the time that the agreement is entered into, a written statement of cancellation rights that conforms with the requirements prescribed by the minister.


S.M. 1989-90, c. 53, s. 12; S.M. 1996, c. 49, s. 2.

Cancellation within 10 days

62(1)       A buyer may cancel a retail sale or retail hire-purchase to which this Part applies at any time within 10 days following the day on which the buyer receives a statement of cancellation rights that conforms with the requirements prescribed by the minister.

Other cancellation rights

62(2)       A buyer may cancel a retail sale or retail hire-purchase to which this Part applies within one year after entering into the agreement where

(a) the vendor or direct seller was not licensed as required by this Act at the time of entering into the agreement;

(b) the vendor or direct seller has, in respect of the agreement, failed to comply with any of the terms, conditions or restrictions applicable to the vendor's or direct seller's licence;

(c) the statement of cancellation rights given to the buyer does not meet the requirements prescribed by the minister;

(d) if the agreement is in writing, it does not meet the requirements prescribed by the minister; or

(e) the vendor fails to

(i) deliver the goods within 30 days after

(A) the delivery date specified in the agreement or such other delivery date as is agreed to in writing, or

(B) if the delivery date cannot be established under paragraph (A), the date of the agreement, or

(ii) begin to provide the services within 30 days after

(A) the start date specified in the agreement or such other start date as is agreed to in writing, or

(B) if the start date cannot be established under paragraph (A), the date of the agreement.

Accepting delivery after 30 days

62(3)       A buyer who accepts the delivery of any goods or provision of any services under an agreement after the 30-day period referred to in clause (2)(e) is not entitled to cancel the agreement pursuant to that clause.

Relief against cancellation

62(4)       Where in the opinion of a court it is inequitable that clause (2)(e) should apply, the court may make such order as it considers appropriate.

Cancellation rights in addition to other rights

62(5)       The cancellation rights under this section in respect of an agreement are in addition to, and do not affect, any other right or remedy the buyer has under or in respect of the agreement or at law in the province or territory in which the buyer resides.

Cancellation of sale on credit

62(6)       Where credit is extended or arranged by a vendor in connection with a retail sale or retail hire-purchase to which this Part applies, and the credit agreement is separate from the sale or hire-purchase agreement, a cancellation under this section of the sale or hire-purchase agreement has the effect of cancelling the credit agreement.


S.M. 1989-90, c. 53, s. 12 and 13; S.M. 1996, c. 49, s. 2.

Notice of cancellation

63(1)       A retail sale or retail hire-purchase agreement is cancelled under section 62 on the giving of a notice of cancellation in accordance with this section.

Method of giving notice

63(2)       A buyer may give a notice of cancellation to the vendor by registered mail, fax, personal delivery or any other method by which the buyer can provide evidence of the date of the cancellation.

Adequacy of wording

63(3)       A notice of cancellation is adequate if, however expressed, it indicates the intention of the buyer to cancel the agreement.

Effective date of cancellation

63(4)       A notice of cancellation that is given otherwise than by personal delivery is deemed to be given when sent.

Address for service

63(5)       A notice is deemed to be sent to the vendor if it is sent to the address for notice set out in the agreement or statement of cancellation rights.


S.M. 1996, c. 49, s. 2.

Effect of cancellation

64(1)       Where a buyer cancels a retail sale or retail hire-purchase agreement under section 62,

(a) subject to subsection 65(2), every liability or obligation of the buyer under the agreement is extinguished;

(b) the vendor shall, within 15 days after the cancellation,

(i) refund to the buyer all money paid for or on account of the purchase price, rent, cost of borrowing or any other thing pursuant to the agreement, whether paid to the vendor or to any other person, and

(ii) if goods were taken by the vendor as a trade-in, return them to the buyer in as good a condition as they were in when they were taken in trade, or if the vendor is not able to do that, pay to the buyer the greater of

(A) the market value of the goods at the time they were taken in trade, and

(B) the price or value of the goods specified in the agreement; and

(c) in the case of an agreement respecting goods, on receiving everything to be refunded, returned or paid to the buyer under clause (b), the buyer shall return the goods to the vendor.

Negotiation of new agreement

64(2)       Upon receiving notice of cancellation of an agreement, the vendor shall fulfil his obligations under subsection (1) before attempting to renegotiate the agreement or to negotiate another agreement with the buyer; and any agreement for the sale of the same or substitute goods or services subsequently made between the vendor and the buyer is a new agreement that is subject to all of the provisions of this Part notwithstanding where the sale is completed.


S.M. 1996, c. 49, s. 3.

Rights of cancellation

65(1)       Except as provided in subsection 62(3), the right of a buyer to cancel an agreement under this Part is not affected by

(a) the delivery of the goods to him; or

(b) the use of the goods by him; or

(c) the partial consumption of the goods by him; or

(d) the accidental destruction of or damage to the goods; or

(e) the partial performance by the vendor of any services;

but the right of a buyer or hirer to cancel an agreement under this Part is extinguished by

(f) deliberate destruction of, or damage to, the goods by the buyer or any member of his household; or

(g) the actual consumption by the buyer of all goods comprised in the agreement and the complete performance by the vendor of all services comprised therein.

Where goods not intact

65(2)       Where goods have been used, or partially consumed or accidentally destroyed or damaged by a buyer, or some services have been performed by the vendor,

(a) the vendor may recover from the buyer reasonable compensation therefor;

(b) the vendor's right to recover compensation does not arise until the vendor has repaid or returned to the buyer all moneys and goods to which he is entitled; and

(c) the vendor may not maintain any action for compensation until the right thereto has arisen;

and a vendor shall not, under this subsection, recover payment from the buyer more quickly than he would have been entitled to under the agreement, and any judgment in favour of the vendor under this subsection may be made payable by instalments.

Buyer's lien on cancellation

65(3)       The buyer has a lien on all goods delivered to him for all amounts payable to him by the vendor.


S.M. 1996, c. 49, s. 4.

PART VIII

ASSIGNEES AND GUARANTORS

Assignment of rights of borrower

66(1)       The rights conferred by this Act on a borrower pass to, and may be exercised by, any person claiming through or under him without any express assignment thereof; but no such person has any right to receive from a credit grantor any notice required by this Act unless the credit grantor has been made aware of the transfer to him of the borrower's rights before the time when that notice has to be given.

Reservation of rights

66(2)       Notwithstanding subsection (1), a buyer, when selling or transferring to another person any goods that he has acquired on a credit sale or hire-purchase, may reserve, either expressly or by necessary implication, any rights he has against the seller under section 58.

Assignees included in "borrower" and "buyer"

66(3)       Where the context so admits, in this Act, "borrower" and "buyer" include any persons to whom their rights pass under this section.

Rights of guarantors, etc.

66(4)       Every provision of this Act that restricts or reduces the amount payable by a borrower or gives him a right of set-off, likewise restricts or reduces the amount payable by, and gives a similar right of set-off to, any endorser, surety, or guarantor for him; but this subsection does not affect any liability to an assignee of a credit grantor on the part of

(a) the credit grantor himself; or

(b) any manufacturer, wholesaler, or distributor of the goods where the credit grantor is a seller; or

(c) any person who has guaranteed the performance by the credit grantor of his obligations generally.

Assignee's obligations fixed by court

66(5)       Where goods that were acquired on a time sale, or are subject to a chattel mortgage, are repossessed or seized, and an assignee of the buyer or mortgagor applies to the court for relief, the court, as a condition of granting relief, may require the assignee to undertake to be personally liable for payment of the balance owing to the seller or mortgagee.

Rights and obligations of assignee

67(1)       Except as may be otherwise provided in this Act, where a credit grantor in any transaction to which this Act applies, assigns his rights, duties, powers, obligations and liabilities to an assignee, the assignee has no greater rights or powers and is subject to the same duties, powers, obligations and liabilities of the assignor; and the provisions of this Act applicable to the assignor, including the provisions for the violation of which the assignor is liable to be prosecuted, apply equally to the assignee.

Credit grantor to comply with certain provisions of the Act

67(2)       Every credit grantor has a duty and an obligation to ensure that the requirements of subsections 4(2), 5(2) and 13(2) are met.

Rights of borrowers against assignee

67(3)       Notwithstanding subsection (1), no borrower may recover from, or be entitled to set-off against, an assignee of the credit grantor, an amount greater than the balance owing on the contract at the time of the assignment; and, if there have been two or more assignments, no borrower can recover from an assignee who no longer holds the benefit of the contract an amount that exceeds the payments made by the borrower to that assignee.

Restrictions apply to assignees

67(4)       Except as otherwise provided in this Act, all restrictions imposed by this Act on

(a) the right of a credit grantor to claim immediate payment of the debt; and

(b) the right of a seller or mortgagee to repossess or seize goods;

apply equally to any assignee of the credit grantor, seller, or mortgagee and, in the restrictions, "credit grantor", "seller", and "mortgagee" include an assignee of a credit grantor, seller, or mortgagee respectively.

Effect of cancellation

67(5)       The cancellation of an agreement by any buyer under Part VII is effective against any assignee of the seller.

Recovery under promissory note

67(6)       Where subsection 23(1) or subsection 25(1) or (2) applies, if the payments to be made by the borrower are secured by a promissory note that is negotiated to an assignee of the credit grantor, and the assignee sues in Manitoba on that note, the borrower or other person sued on the note may recover back from the assignee as a simple contract debt the difference, if any, between

(a) the amount recovered by the assignee on the note; and

(b) the amount that the assignee could have recovered if the payments had not been secured by the note.

Set-off for breach of condition, etc.

67(7)       Subject to section 68, a breach of any of the conditions or warranties implied by section 58 may be set-off

(a) by the buyer against any claim to the goods, or to payment of the price and cost of borrowing or rent or any part thereof, or of any promissory note given therefor made by any assignee of the seller; or

(b) by any holder of the promissory note, whether or not the note discloses the purpose for which it was given; or

(c) by any person claiming the goods by a title paramount to that of the seller with whose consent, express or implied, the seller has sold or let on hire the goods;

but the amount that may be set-off against an assignee or holder of a note under this subsection shall not exceed the amount limited by subsection (2), and the amount that may be set-off against any person claiming the goods by paramount title shall not exceed the lesser of

(d) the cash price of the goods; or

(e) the balance owing as described under section 4 or 5, as the case may be.

Documents to follow assignment

67(8)       Where a credit grantor assigns a promissory note taken in any transaction to which section 4, 5, 13, 14 or 40 applies, he shall deliver to the assignee with the promissory note a copy of the document required by that section; and the assignee who re-assigns the note shall deliver to his assignee a copy of the document.

Assignee of chattel mortgage

68(1)       Where a chattel mortgage to which subsection 45(1) applies does not indicate that it was given to secure payment of the price of the goods or goods and services, any assignee for value of that mortgage who took an assignment without notice that the mortgage was given for that purpose is not affected by any liabilities or restrictions imposed on the seller by Part IV or by section 58.

Onus of assignee

68(2)       The onus lies on the assignee to prove that he took the assignment for value and without notice of the purpose for which the chattel mortgage was given.

Where seller not mortgagee

69(1)       Where a buyer on a retail sale of goods finances his purchases or any part of the purchase price by a chattel mortgage given to some other person other than the seller, the transaction is nevertheless a time sale for the purposes of sections 46 to 56 and a retail sale for the purposes of section 58, and the mortgagee is deemed to be an assignee of the seller, if the financing was arranged by the seller but not otherwise.

Disclosure to assignee

69(2)       Any mortgagee who takes a mortgage to which subsection (1) applies shall, on any assignment of the mortgage, disclose that circumstance in writing to the assignee; and any assignee of the mortgagee who is aware of that fact shall likewise disclose it to any person to whom he assigns the mortgage.

Disclosure required

69(3)       No person shall assign a mortgage without making a disclosure required by subsection (2).

Relief of assignee

69(4)       Any assignee for value of a mortgage to which subsection (1) applies who took an assignment without notice of that circumstance is not affected by any liabilities or restrictions imposed on the seller by Part IV or by section 58.

Onus of assignee

69(5)       The onus lies on the assignee to prove that he took the assignment for value and without notice that subsection (1) applied to it.

Exception

69(6)       Subsection (1) does not apply to a chattel mortgage on any cottage, barn, shed, or other building if the money is advanced by the mortgagee to the seller on written instructions from the buyer, given not less than seven days after the signing of the mortgage, that states

(a) that the building is completed to his satisfaction to the extent specified in the instructions and that the mortgagee may advance a stated sum to the seller; or

(b) that the building is fully or substantially completed to his satisfaction and that the mortgagee may advance the balance of the loan to the seller.

PART IX

CONSUMERS' BUREAU

Bureau continued

70          The Consumers' Bureau is continued.

Administration of bureau

71          The bureau is under the control and direction of the minister.

Duties of director

72          The director or any person acting under the authority of the director is responsible for

(a) the granting, suspending, and revocation of licences in respect of persons required to be licensed under this Act;

(b) the receiving, recording, and investigation of complaints by any persons of breaches of this Act, and the taking of such action thereon as may appear appropriate, including the prosecution of offenders;

(c) the mediation of complaints;

(d) the dissemination of information of consumer interest in the widest and most effective manner; and

(e) generally, the supervision of the operations of this Act.

Investigation of complaints

73(1)       The director or any person authorized by him for the purpose may receive and investigate complaints or any other matter necessary for the proper administration of this Act.

Access to documents

73(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.

Retention of records

73(3)       Every credit grantor to which this Act applies shall keep and maintain in the office where the account is maintained in Manitoba for a period of three years from the date the obligation is paid out a complete record and account of each transaction to which this Act applies.

Information confidential

73(4)       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

73(5)       Subsection (4) does not prohibit

(a) the communication of information by the director to a department or agency of the government of Manitoba or another province or territory of Canada or the Government of Canada or a municipality in Canada, or to members of a police force of any of the foregoing;

(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

73(6)       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

73(7)       A justice may, on an ex parte application where necessary, issue the order referred to in subsection (6) 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.


S.M. 1992, c. 26, s. 2.

Inquiry by director

74(1)       The minister may authorize the director in writing to conduct an inquiry for the purpose of any investigation under this Act, and thereupon the director has all the powers of a commissioner under Part V of The Manitoba Evidence Act, and Part V, except sections 85 and 86 applies to the inquiry.

Restraining order

74(2)       Where it appears to the director that any person is contravening any provision of this Act or the regulations, notwithstanding the provision of any penalty in respect of the contravention and in addition to any other rights that the director may have, the director may apply

(a) ex parte; or

(b) upon notice to that person;

to a judge of the court for an order directing the person to comply with the provision of the Act or the regulation, as the case may be, or for an order restraining such person from contravening the provision of the Act or the regulation, as the case may be, and upon the application the judge may make such order as he thinks fit.

Service of order on person

74(3)       Where under subsection (2) an order is obtained upon an ex parte application, a copy of the order shall within five days of the making thereof, be served by the director or a person on his behalf upon the person concerned who may, within seven days of the receipt of the copy of the order, appeal the order to the Court of Appeal whose decision thereon is final.

Service of order

74(4)       For the purpose of subsection (3), a copy of the order may be served

(a) by sending it by registered mail to the last known address of the person upon whom it is to be served; or

(b) by personal delivery thereof to the person concerned.

PART X

LICENSING

Licensing of vendors

75(1)       No person shall make on his own behalf, or use others to make on his behalf, any offer, solicitation, proposal, or approach that is intended to result in a sale to which Part VII applies unless he is licensed as a vendor under this Act, and where goods or services, or both are intended for resale or rehire, directly or indirectly in a manner to which Part VII and this Part apply, the director may determine the person who is required to be licensed as a vendor under this Part.

Licensing of direct sellers

75(2)       No person shall, on behalf of a vendor, make any offer, solicitation, proposal, or approach that is intended to result in a sale to which Part VII applies unless the person is licensed as a direct seller for that vendor under this Act.

Use of unlicensed direct seller

75(3)       No vendor shall use a person as a direct seller unless that person is licensed under this Act as a direct seller for that vendor.

Licence in one name only

75(4)       A vendor licence shall be issued in one name only.

Alternative to direct seller licensing

75(5)       Notwithstanding subsections (2) and (3) where a vendor confirms that the value of the average retail sale of goods by direct selling is less than $50., the vendor and the director may agree upon terms and conditions whereby an alternative to the licensing requirements may be arranged if

(a) the terms and conditions agreed upon are imposed on the vendor licence; and

(b) none of the rights of a buyer under this Act or any other statute of Manitoba or Canada are abrogated, limited or modified.


R.S.M. 1987 Supp., c. 9, s. 2 and 3; S.M. 1996, c. 49, s. 5.

Licensing of collection agencies

76(1)       No person shall carry on business as a collection agent unless he is licensed as a collection agent under this Act.

Employees of collection agents

76(2)       A person who is employed by a licensed collection agent as a collector does not require a licence to transact business on behalf of the employer but is subject to the registration requirements of section 105.


S.M. 1989-90, c. 53, s. 14.

Granting and renewal of licences

77(1)       Subject to sections 78 and 79, the director shall grant any licence required by this Part to any person who makes application therefor in the prescribed form and pays the prescribed fee; and, shall renew each licence so granted annually on receipt of a renewal application in the prescribed form and of the prescribed renewal fee.

Annual licences

77(2)       Subject to subsection 78(2), every licence shall be issued in the first instance for one year only, and shall be renewed annually; and if a licence is not renewed at the proper time, it expires and ceases to be valid.

Refusal to grant licence

78(1)        The director may refuse to grant a licence as a vendor, direct seller, or collection agent

(a) to any person

(i) who has been convicted of any offence against the Criminal Code (Canada), or

(ii) who has been convicted of an offence against this Act, or

(iii) who has been convicted of any other offence in Canada, that in the opinion of the director involves a dishonest act or intent on the part of the convicted person; or

(b) to any undischarged bankrupt; or

(c) to any person who, within the last preceding 10 years, has been a bankrupt or has been a director of a corporation that became bankrupt while he was a director, unless, in each case, the creditors in the bankruptcy have been paid in full; or

(d) to any person whose licence under this Act, or whose registration under The Real Estate Brokers Act or The Mortgage Dealers Act, has been cancelled or is, at the time of application, under suspension; or

(e) to any corporation, one of the directors or managers of which could be refused a licence under clause (a), (b), (c) or (d); or

(f) to any person who has made a material misstatement in his application for a licence; or

(g) to any person under circumstances where the director is of the opinion that it would be injurious to the public interest to grant a licence; or

(h) to any person who has not complied with the requirements of any applicable federal, provincial or municipal statute, regulation or by-law.

Direct sellers' licences

78(2)       Licences as direct sellers shall be granted only to individuals and shall cease to be valid on the same date as that on which the licence of the vendor named in the direct seller's licence expires or ceases to be valid.

Conditions of licences

78(3)       The director, when granting or renewing a licence or by written notice to the licensee at any other time, may impose on the licence of a vendor, direct seller or collection agent, such conditions and restrictions as he considers to be reasonably necessary and without limiting the generality of the foregoing the director may

(a) impose on a vendor or collection agent to whom a licence is issued, conditions respecting the manner in which and terms under which the vendor or collection agent may recruit direct sellers or employees; and

(b) impose on a vendor, direct seller or collection agent to whom a licence is issued conditions respecting sales practices, promotional schemes or collection practices.

Special condition re officers of licensee

78(4)       In granting or renewing a licence to a corporation, the director may make it a condition thereof that an individual named in the licence shall continue to hold the office or position stated in the licence; and any licence granted subject to the condition expires one month after the condition ceases to be fulfilled, and a licence that has so expired shall not be renewed, but an application for a new licence to replace an expired licence may be made.

Partnerships licensed

78(5)       Persons who are carrying on business in partnership may join in one application for a licence as a vendor or collection agent, and a single licence may be issued to all of them; but the licence shall show both the partnership name and the names of all the partners; and, if any change whatever occurs in the composition of the partnership, the licence expires one month after the change occurs.

Alteration of partnership

78(6)       A licence that has expired under subsection (5) shall not be renewed, but an application for a new licence to replace the expired licence may be made; and where the only change is that one or more of the partners named in it have ceased to be partners, the new licence may be granted to the continuing partners for the balance of the year of the old licence, and in that event no fee is payable on the new licence.

Change of address

78(7)       Every vendor or collection agent licensed under this Act shall notify the director in writing of any change of the address of his principal place of business in Manitoba within 14 days of the change.

Service at address of licensee

78(8)       Every applicant for a licence as a vendor or collection agent shall state in the application an address for service in Manitoba; and any notice given pursuant to this Act or the regulations shall, for all purposes, be deemed to be sufficiently served if delivered to, or sent by registered mail to, the licensee at the address for service stated in his application for a 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 latest address for service of which the director has been notified.

Refusal to renew licence

79(1)       The director may refuse to renew any licence if any event, or any change in the directorship or management of a corporation, has occurred since it was granted or last renewed, and that event or change would give grounds for refusing the grant of a licence.

Refusal on ground of circumstances

79(2)       The director shall refuse to renew a licence if he has become aware of any circumstances which would require him to refuse to grant a licence to the applicant.

Reasons for refusal of licence

80(1)       Where the director refuses to grant or to renew a licence, he shall state in writing his reasons for such refusal.

Reasons for imposing conditions and restrictions

80(2)       Where the director has imposed a condition or restriction on a licence, he shall, upon the written request of the licensee, state in writing his reasons for imposing the condition or restriction.

Licence not assignable

81(1)       A licence under this Act is not assignable.

Registration not assignable

81(1.1)      The registration of a person as a collector under this Act is not assignable.

Authority of vendor's licence

81(2)       The holder of a licence as a vendor may carry on a business to which Part VII applies in every respect, except that he is not authorized by his vendor licence to act as a direct seller for another vendor.

Authority of direct sellers license

81(3)       The holder of a licence as a direct seller shall only act as a direct seller for, or on behalf of, the vendor whose name is specified in the licence.

Director may limit number

81(3.1)     The director may limit the aggregate number of direct sellers who may be licensed to act for and on behalf of a vendor licensed in accordance with subsection 75(1).

Class of business transactions

81(4)       No vendor or direct seller shall, in the course of a business to which Part VII applies, sell or offer for sale, or solicit orders for the future delivery of, goods or services of any sort or class other than those specified in his licence.

Vendors to be principal of direct sellers

81(5)       Every application for a licence as a direct seller shall be accompanied by a notice given by a licensed vendor, stating that the applicant, if granted a licence, is authorized to act as a direct seller representing that vendor.

Principal to be named in licence

81(6)       A licence issued to a direct seller shall specify as the principal of the licensee the vendor who has given the notice accompanying the application for that licence pursuant to subsection (5).

Direct seller acting for vendor

81(7)       A direct seller who is the holder of a subsisting licence shall be deemed to be authorized by the vendor specified in the licence to act for on behalf of that vendor.

Cancellation of direct seller's licence

81(8)       Where a direct seller ceases to represent a vendor, that vendor shall forthwith give notice in writing to the director that the salesman has ceased to represent him; and the receipt of the notice by the director operates as a cancellation of the licence of the direct seller.


R.S.M. 1987 Supp., c. 9, s. 4; S.M. 1989-90, c. 53, s. 15.

Licence required

82          No person shall carry on any business or occupation for which a licence under this Act is required without having a valid subsisting licence to do so.

Warning of cancellation

83(1)       Where the director has cause to believe that any person who is licensed under this Act has committed a breach of any provision of this Act, or of any conditions or restrictions in respect of any licence, he may serve on the person, by registered mail, a notice stating

(a) the act or omission complained of, and the approximate date on which it occurred;

(b) the section of this Act, or the conditions or restrictions of licence, of which the act or omission is a breach;

and warning the person that, if he commits a further breach of a like nature, his licence may be cancelled.

Exception

83(2)       Where the director is satisfied that the breach committed was due to

(a) inadvertence; or

(b) a bona fide misunderstanding of the requirements of this Act;

he shall not serve such a notice.

Notice of cancellation

84(1)       Where any person who is licensed under this Act

(a) is convicted

(i) of any offence against the Criminal Code (Canada), or

(ii) of any offence against this Act, or

(iii) of any offence in Canada, that in the opinion of the director involves a dishonest act or intent on the part of the convicted person; or

(b) becomes a bankrupt; or

(c) being registered under The The Real Estate Brokers Act or The Mortgage Dealers Act, suffers a cancellation of his registration thereunder; or

(d) having been served with a notice by the director under section 83 commits, within two years after the date of the notice, a further breach of a like nature to the one stated in the notice; or

(e) fails to comply with any of the terms, conditions or restrictions to which his licence is subject; or

(f) has made a material misstatement or otherwise failed to disclose full information as required in his application for a licence;

the director may serve upon him, by registered mail, a notice of cancellation of his licence.

Contents of notice of cancellation

84(2)       A notice of cancellation of a licence shall state

(a) the reasons for cancellation; and

(b) that the licence will be cancelled 14 days after the mailing of the notice unless, within that time, the person licensed appeals to the court in accordance with section 87 and serves on the director a notice of appeal.

Cancellation of licence

84(3)       Unless an appeal is taken under section 87, and notice thereof given to the director within the 14 days, the director shall cancel the licence 14 days after the mailing of the notice under subsection (2) without any further notice.

Effect of cancellation of vendor's licence

84(4)       Where the licence of a vendor is suspended or cancelled, the licence of all direct sellers of the vendor shall likewise be suspended or cancelled, as the case may be.

Appeal from decision of director

85(1)       An applicant, licensee or person in respect of whom the decision was made, may appeal, by originating notice of motion, to the court from the decision of the director in the following cases and on the following grounds:

(a) Where the director has refused to grant or to renew a licence, upon the ground that the reasons for the refusal as stated by the director either

(i) allege some material matter of fact which is not correct; or

(ii) do not, in law, constitute a reason for refusing to grant or renew a licence under this Part.

(b) Where the director has imposed a condition or restriction on a licence, upon the ground that the reasons for imposing it, as stated by the director, are insufficient to support it.

(c) Where the director has refused to accept a bond of less than $5,000. under subsection 89(2), upon the ground that the proof furnished to the director did establish that a bond of a lesser amount would be sufficient.

(d) Where the applicant contends that the amount of the bond required by the director under subsection 90(1) is excessive, upon the ground that it is for a larger amount than is usually required, and that the reasons stated by the director do not justify the requiring of so large a bond.

(e) Where the director refuses to give any consent required under section 105 upon the grounds that the consent was unreasonably withheld.

Director to comply with court order

85(2)       Where the court allows the appeal, the director shall grant or renew the licence, cancel or modify the condition or restriction, or reduce the amount of the required bond, as the case may be; but until the appeal is decided the decision of the director that is under appeal is valid and effective, and the applicant must comply with it while the appeal is pending.

Application to court re warning

86(1)       Where a person who receives a notice under section 83 wishes to contend that the act or omission complained of in the notice is not a breach of the section or of any conditions or restrictions of the licence, he may apply to the court by originating notice of motion, for the determination of the question.

Stay of further notices

86(2)       Until a question before the court under subsection (1) has been finally determined, the director shall not give a notice of cancellation of the licence under clause 84(1)(d) based on the notice given under section 83, or serve any further notices on the person in respect of a like act or omission; but the court may, if it sees fit, on the application of the director, issue an interim injunction requiring the person to desist from the actions or course of conduct to which the director objected.

Appeal of cancellation

87(1)       A person on whom a notice of cancellation under section 84 is served may appeal therefrom, by originating notice of motion, to the court on the ground that

(a) any material fact alleged in reasons for the cancellation is not correct; or

(b) the reasons set forth in the notice are not sufficient in law to justify cancellation of the licence; or

(c) if the notice was served pursuant to clause 84(1)(d), that the further breach alleged was due to inadvertence.

Time for filing appeal

87(2)       The notice of motion must be filed and served on the director within 14 days of the mailing of the notice under section 84.

Where appeal allowed

87(3)       Where the court allows the appeal, the notice of cancellation is of no effect.

Dismissal of appeal

87(4)       Where the court dismisses the appeal, the director shall cancel the licence.

Determination of fact by court

88(1)       Where an appeal is taken under section 85 or 87, the court shall determine any fact in dispute in such manner as it considers appropriate.

Director as respondent

88(2)       Every notice of motion appealing from a decision or action of the director shall be served on the director, and he shall be named as the respondent thereto.

Court may substitute its opinion

88(3)       Where the director has refused to grant or to renew, or has cancelled, a licence on the ground that the applicant or licensee has been convicted of an offence that, in the opinion of the director, involves a dishonest act or intent on the part of the offender, that opinion is, for the purposes of this Part, a question of law, and the court may substitute its own opinion for that of the director.

Bond for collection agent

89(1)       Subject to subsection (2), an applicant for the granting or renewal of a licence as a collection agent, shall file with the director, a bond in a form acceptable to the director and in an amount of not less than $5,000., but the director may increase the amount of bond as may appear necessary in view of the agent's volume of business.

Smaller bond

89(2)        In the case of an application for renewal of a licence, the director may accept a bond of less than $5,000. upon being furnished with proof, acceptable to him, that a bond of the lesser amount would be sufficient, in view of the volume of the applicant's business in the preceding 12 months.

Change in officers of collection agent

89(3)       Where a collection agent licensed under this Act is a corporation and a change occurs in the directors or officers thereof, the agent shall forthwith file with the director such documentary evidence as the director may require establishing, to the satisfaction of the director, that the surety that bonded the agent has been notified of the change.

Cancellation of bond

89(4)       Every bond required by this section shall provide that it cannot be cancelled without written notice to the director.

Suspension of licence

89(5)       When a bond is cancelled, whether by the agent or by the surety, the agent's licence is automatically suspended, and remains suspended until the agent files with the director a new bond complying with the requirements of this section.

Where bond cancelled

89(6)       Where the director has received from a surety notice of intention to cancel a bond of an agent who applies to renew a licence, the director may refuse to renew the licence until a new bond has been filed in accordance with the requirements of this section.

Bond for vendors

90(1)       The applicant for the granting or renewal of a vendor's licence shall file with the director, as part of the application, a bond in such form as may be prescribed by regulations, and in such amount as the director may require and when a bond is cancelled, whether by the surety or the vendor, or expires, the vendor's licence is automatically suspended until the vendor files with the director a new bond that complies with this section.

Reasons for amount of bond

90(2)       Where the applicant gives the director written notice that he considers the amount of the bond required by the director under subsection (1) to be excessive, the director shall state in writing his reasons for requiring a bond of the amount in question.

Rights of government under bond

90(3)       Notwithstanding that the government has not suffered any loss or damages, every bond delivered to the director under subsection (1) shall be construed as being a penal bond; and, where the bond is forfeited pursuant to subsection (4), the amount due and owing as a debt to the government by the person bound thereby shall be determined as if the government suffered such loss or damages as would entitle the government to be indemnified to the maximum amount of liability prescribed by the bond.

Forfeiture of bond

90(4)       Every bond delivered under subsection (1) shall be forfeited, upon demand of the director, where

(a) a person in respect of whose conduct the bond is conditioned or any representative, agent, or salesman of that person has been convicted of

(i) an offence under this Act or any regulation; or

(ii) an offence involving fraud or theft or conspiracy to commit an offence involving fraud or theft under the Criminal Code (Canada); or

(b) judgment in respect of a claim arising out of a sale to which Part VII applies, has been given against the person in respect of whose conduct the bond is conditioned or against any representative, agent, or salesman of that person; or

(c) the person in respect of whose conduct the bond is conditioned commits an act of bankruptcy, whether or not proceedings have been taken under the Bankruptcy Act (Canada); or

(d) a decision has been rendered by the director in writing stating in effect that after consideration and investigation of a complaint, he is satisfied that the person in respect of whose conduct the bond is conditioned or any representative, agent, or salesman of that person

(i) has violated any provision of this Act or has failed to comply with any of the terms, conditions or restrictions to which his licence is subject or is in breach of contract; or

(ii) has departed from Manitoba or being out of Manitoba remains out of Manitoba, or departs from his dwelling house or otherwise absents himself;

and the conviction, judgment, order, or decision has become final by reason of lapse of time or of having been confirmed by the highest court to which any appeal may be taken.

Sale of collateral to bond

90(5)       Where a bond secured by the deposit of collateral security with the director is forfeited under subsection (4), the director may sell the collateral security at the current market price.

Payment of moneys recovered under bond

90(6)       The minister may direct that any moneys recovered under a bond or realized from the sale of any collateral security be paid over

(a) to the Registrar or a deputy registrar of the court, in trust for such persons as may become judgment creditors of the person named in the bond, in respect of claims arising out of sales to which Part VII applies; or

(b) to any trustee, custodian, interim receiver, receiver, or liquidator of the person named in the bond;

in accordance with, and upon the conditions set forth in, the direction; or

(c) to such persons as may be deemed to be entitled thereto

(i) by reason of a sale to which Part VII applies, made by or on behalf of the person named in the bond, or

(ii) by reason of any offer, solicitation, proposal or approach made by or on behalf of the person named in the bond and intended to result in a sale to which Part VII applies.

Disposition of unexpended moneys

90(7)       Any moneys not expended pursuant to a direction of the minister under subsection (6) shall be refunded to the surety or obligor under the bond except where there are third party claims against those moneys, in which case, the moneys not expended shall be paid to the court.


S.M. 1989-90, c. 53, s. 16.

Appeal of decision of director

91(1)       A person who is aggrieved with a decision of the director under subsection 90(4) or (5) may, within 30 days after the date of the decision, appeal to the court which may, upon hearing the appeal, make such order as may seem fit having regard to all the circumstances.

Form of appeal

91(2)       The appeal shall be by notice of motion, and a copy thereof shall be served upon the director within 30 days after the date of the decision and not less than 10 days before the day on which the motion is returnable.

PART XI

GENERAL PROVISIONS

Actions against employees in bureau

92          No action lies, or shall be instituted, against the director or any other officer or employee of the government employed in the bureau, to recover any loss or damages alleged to have been suffered as a consequence of any act or omission in connection with the administration or carrying out of this Act or the regulations.

Advertising licence prohibited

93          No person licensed under this Act shall, directly or indirectly, hold himself out as being so licensed, or exhibit to the public any letter, receipt, or copy thereof received from the director, or in any way advertise the licence, save to produce the licence on request, or as may be required pursuant to a condition to which the licence is subject or by the regulations.

Offence and penalty

94(1)       Except where otherwise specifically provided, any person who contravenes, or fails or neglects to comply with, a provision of this Act or the regulations is guilty of an offence and liable, on summary conviction,

(a) if an individual, to a fine of not more than $3,000. for a first offence and to a fine of not more than $10,000. or imprisonment for a term of not more than three years for any subsequent offence; and

(b) if a corporation, to a fine of not more than $10,000. for a first offence and to a fine of not more than $25,000. for any subsequent offence.

Further action by court

94(2)       Where a person is found guilty of an offence under subsection (1) the court may in addition to imposing a fine

(a) where the offence arises out of a failure to pay moneys, order the offender to pay the moneys forthwith; and

(b) where the offence arises out of

(i) the doing of anything forbidden under the Act, or

(ii) failure to do anything required to be done under the Act, order the offender to take such action as may ensure compliance with the Act or the regulations as the case may require.

Filing of order in court

94(3)       Where an order made under subsection (2) requires the payment of moneys by an offender, the order may be filed in the court and when so filed, the order shall for all purposes be deemed a judgment of the court.


S.M. 1989-90, c. 53, s. 17.

Limitation period for complaint

95          A complaint or information charging any person with an offence under this Act shall be laid within two years from the time the offence was committed.

Agreements waiving benefits

96          Every agreement or bargain, oral or written, expressed or implied, that any provision of this Act or the regulations does 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, is void; and moneys paid under or by reason of the agreement or bargain are recoverable in the court.

Regulations by L.G. in C.

97          For the purpose of carrying out the provisions of this Act according to their intent, the Lieutenant Governor in Council may make regulations ancillary thereto and not inconsistent therewith; and every regulation made pursuant to, 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) prescribing the form and contents of applications for the granting or renewal of a licence or for registration as a collector;

(b) prescribing the form and contents of licences and bonds;

(c) prescribing the fees payable under this Act;

(d) exempting any class of buyer, seller, vendor, direct seller, collection agent, credit grantor or borrower or any category of transaction from the application of this Act or any provision thereof;

(e) prescribing standard forms of contract and notices required to be given under the Act;

(f) prescribing the manner in which the cost of borrowing stated as a percentage shall be calculated, expressed and applied and margins of error permissible;

(g) prescribing the manner in which the unearned portion of the cost of borrowing should be calculated;

(h) respecting the manner in which the cash price of goods or services or both, shall be disclosed to a purchaser in a cash sale, a sale on credit or a hire-purchase;

(i) respecting the times when notices under subsections 4(4), 5(4), 12(10) and 13(4) shall be given to the borrower;

(j) prescribing services to which Part XV applies, in addition to the services set out in the definition of "services" in section 121;

(k) respecting any matter necessary and advisable to carry out effectively the intent and purpose of this Act.


S.M. 1989-90, c. 53, s. 18, 19 and 20; S.M. 1996, c. 49, s. 6.

Regulations for Part VII

97.1        The minister may make regulations respecting

(a) the form and content of written agreements for retail sales and retail hire-purchases to which Part VII applies;

(b) the form and content of the statement of cancellation rights referred to in Part VII;

(c) any other matter considered necessary or advisable to carry out effectively the intent and purposes of Part VII.


S.M. 1996, c. 49, s. 7; S.M. 2000, c. 32, s. 33.

Regulations for Part XVI

97.2        The minister may make regulations

(a) prescribing information that a seller must provide to a buyer before entering into a retail sale or retail hire-purchase agreement to which Part XVI applies;

(b) respecting requests under Part XVI for the reversal or cancellation of credit card charges and charges for associated interest and other costs;

(b.1) prescribing goods or services for the purpose of subsection 130(1);

(c) respecting any matter that the minister considers necessary or advisable to carry out effectively the intent and purposes of Part XVI.


S.M. 2000, c. 32, s. 34; S.M. 2001, c. 10, s. 2.

PART XII

COLLECTION PRACTICES

Prohibitions

98          No person, whether on his own behalf or on behalf of another, directly, or through others, shall with respect to any loan of money to which this Act applies, or to any hire-purchase or sale of goods or services, or both

(a) collect or attempt to collect from a debtor a greater amount than the sum of the amount actually owing by the debtor to the credit grantor and the amount of fees allowed by any statute or regulation made thereunder; or

(b) notwithstanding any agreement to the contrary between the credit grantor and a debtor, collect or attempt to collect from the debtor any fee or commission payable by the credit grantor to a collection agent under any agreement or understanding between the credit grantor and the collection agent; or

(c) send any telegram or make any telephone call to a debtor for the purpose of demanding payment or negotiating payment of a debt if the charges for the telegram or telephone call are payable by the addressee of the telegram or the person to whom the telephone call is made; or

(d) verbally or in writing, collect or attempt to collect money or effect or attempt to effect seizure of goods by stating an intention or threat to proceed with any action for which he does not have lawful authority; or

(e) use, without lawful authority, any summons, notice, demand or other document expressed in language of the general style of any form used in any court in the province, or printed or written in such a manner so as to have the general appearance or format of any form used in any court in the province; or

(f) make telephone calls or personal calls of such nature or with such frequency as to constitute harassment of the debtor, his spouse or common-law partner or his family; or

(g) refer or assign an account for collection or seizure of goods to a collection agent without first cancelling in writing any previous referral or assignment to any other collection agent; but one collection agent may act for or on behalf of another collection agent or a barrister or solicitor; or

(h) except with the leave of the court, remove any goods claimed under seizure or distress unless the debtor, his spouse or common-law partner, his agent or an adult having possession and use of the goods with the consent of the debtor, is present at the time and is aware of the removal; or

(i) seize or attempt to seize, or levy distress against any goods other than those specifically charged or mortgaged, or to which lawful claim may be made under any statute or judgment; or

(j) make a telephone or personal call or attempt to make a telephone or personal call to or on a debtor to demand payment, or negotiate for payment, or seize or levy distress against goods

(i) on a Sunday, or

(ii) on a holiday, or

(iii) on any other day except between the hours of seven o'clock in the morning and nine o'clock in the evening; or

(k) make further demand for payment of an account or seize goods or levy distress if the debtor gives notice by registered mail to the credit grantor, his assignee or collection agent, of a claim for set-off or counter-claim under this Act or any other statute or regulation, or under any right of contract, until

(i) the credit grantor, his assignee or collection agent has submitted the matter to a court of competent jurisdiction for adjudication, or

(ii) the debtor and the credit grantor, his assigns or collection agent, have agreed in writing to the amount still owing by the debtor in respect of the account after deducting an amount agreed upon for the claim for set-off or counter-claim; or

(l) give, by implication, inference or statement, directly or indirectly, any false information to any person or agency that may be detrimental to a debtor or his spouse or common-law partner; or

(m) make any demand for payment, by telephone, by personal call, or by writing, for payment of an account without indicating the name of the credit grantor with whom the account was incurred, the balance owing on the account, and the identity and authority of the person making the demand; or

(n) make telephone calls or personal calls of such a nature or with such frequency as to constitute harassment of any person in an effort to determine the present whereabouts of a debtor, his spouse or common-law partner or his family; or

(o) collect from a debtor any amount greater than that provided by regulation for acting for the debtor in making arrangements or negotiating with credit grantors on behalf of the debtor or receiving money from the debtor, for distribution to his creditors.


S.M. 2002, c. 24, s. 13.

Further meaning of debtor

99          In this Part the term "debtor" includes any person

(a) from whom payment of an alleged debt is demanded; and

(b) from whom a person seizes or attempts to seize goods.

Leave to seize

100(1)      For the purposes of clause 98(h), a person may apply to the court for leave to remove goods claimed under seizure or distress in the absence of the debtor, his spouse or common-law partner, his agent or an adult having possession and use of the goods with the consent of the debtor and subsections 49(2), (3) and (4) apply to the application.

Application of sections 46 and 47 to seizure

100(2)      Where any goods are repossessed pursuant to leave of the court granted under subsection (1), sections 46 and 47 do not apply to the repossession.


S.M. 2002, c. 24, s. 13.

Penalty for wrongful collection

101(1)      Where a collection agent, or a creditor, or any other person, charges a debtor with any amount that is not rightfully collectable from the debtor by reason of any provision of section 98, the debtor may

(a) if the amount has been paid by the debtor, recover from the creditor an amount equal to three times the amount of the charge as a debt due to the debtor; or

(b) if the amount has not been paid or partly paid, set-off an amount equal to three times the amount of the charges against the amount rightfully owing to the creditor and, if the amount of the set-off is greater than the amount rightfully owing, recover the excess from the creditor as a debt due to the debtor.

Action on wrongful possession

101(2)      Where a collection agent or a creditor, or any other person, seizes or levies a distress against goods contrary to section 98, the debtor, or any person claiming an interest in the goods through the debtor, may take possession of the goods and recover the cost of taking possession from the collection agent, the creditor, or the other person, as the case may be.

Restriction on use of name

102(1)      No collection agent shall conduct the business of collection agent under a name that differs from that under which he is licensed and each collection agent licence shall be issued in one name only.

Use of unlicensed collection agents

102(2)      No person shall use any person other than his own employee to act as a collection agent unless the person so used is a licensed collection agent.

Use of collection agent by another collection agent

102(3)      Where one collection agent uses another collection agent to collect a debt or seize goods, he shall immediately on referring the matter to the other collection agent, discontinue his attempt to collect or seize goods from the debtor and notify the credit grantor or his assignees and the debtor, of the name of the agent to which the matter has been referred.

Limitations on benefits from business

103(1)      No collection agent shall obtain any benefit, either directly or indirectly, from the conduct of his business as a collection agent other than the agreed schedule of fees payable by the credit grantor using his services and amounts not in excess of any fees prescribed under this or any other Act of the Legislature or regulations made thereunder, or any Act of Parliament or regulations made thereunder.

Collection of double fees prohibited

103(2)      Where pursuant to clause 98(o) a collection agent has collected from a debtor an amount for his services under that clause, he shall not collect a fee or any amount from the creditor of that debtor with respect to the debt or part thereof, so collected.

Use of forms

104         No collection agent shall use any form that, in the opinion of the director, is an avoidance or a breach of this Act.

Employees

105         Except with the consent of the director, no collection agent shall employ or use any person

(a) who has been convicted of an offence under the Criminal Code (Canada); or

(b) who has been convicted of an offence under this Act, or under any statute in force in any part of Canada that is similar in nature to this Act; or

(c) who within the previous ten years has been a bankrupt or has been an officer or director of a corporation or a member of a partnership that became bankrupt during the period of his involvement unless, in each case, the creditors in the bankruptcy have been paid in full; or

(d) who is not registered with the bureau in accordance with the regulations; or

(e) who is unable to satisfy the director as to his competence and knowledge of this Act and any other Act of Manitoba or Canada pertaining to collection of debts;

and, upon payment of the prescribed fee, the consent shall be granted in accordance with the regulations in the first instance for one year only, and shall be required annually thereafter.


S.M. 1989-90, c. 53, s. 21.

Registration of certain persons with the bureau

106         No person shall collect or attempt to collect moneys or seize or attempt to seize goods for or on behalf of a collection agent unless that person is registered with the bureau in accordance with section 105 to be employed by the collection agent named in the application to register as a collector as provided by the regulations.

Restriction on use of name by collector

106.1       No collector shall, for or on behalf of a collection agent, collect or attempt to collect money, or seize or attempt to seize goods, using a name that differs from that under which the collector is registered under section 105.


S.M. 1989-90, c. 53, s. 22.

Proper records

107         Every collection agent shall keep proper records and books of account showing moneys received and moneys paid out, including a receipt book, a cash book, a ledger of client's accounts, a ledger of debtor's accounts, and a journal, or equivalent accounting records satisfactory to the director.

Trust account

108(1)      Every collection agent shall maintain in the province a trust account in a bank, trust company or credit union, and shall deposit all moneys received on behalf of a client in the trust account.

Withdrawals from trust account

108(2)      A collection agent shall not withdraw any moneys from the trust account except

(a) money paid to or on behalf of a client from funds that have been deposited in the trust account for the credit of the client;

(b) money required for payment to the collection agent of his charges pursuant to an agreement to collect debts or disbursements made on behalf of a client from money in the trust account held for the credit of the client; and

(c) money paid into, or credited to, the trust account by mistake.

Appointment of auditors

109(1)      Every collection agent shall appoint an auditor satisfactory to the director to audit his books and accounts.

Submission of audited statements

109(2)      Every collection agent shall cause to be prepared and shall submit to the director, within three months of the close of his fiscal year, a statement, certified by the auditor of the collection agent, showing

(a) the assets and liabilities of the collection agent; and

(b) the gross amount of moneys collected during the preceding fiscal year of the collection agent.

Accounting to client for collections

110(1)      Without notice or demand therefor, every collection agent shall account to the client for all moneys collected by him within 30 days after the end of the calendar month in which the moneys are collected and if the total of all amounts payable to any person after deduction of any agreed charges is $10. or more, he shall at the same time pay the amount to the person entitled to receive it.

Accounting for seized goods or chattels

110(2)      Without notice or demand therefor every collection agent shall provide

(a) within four days after the goods or chattels have been seized a written notification to the client and to the person from whom the goods were seized listing all goods or chattels seized by the collection agent; and

(b) within 30 days after the end of the calendar month in which the goods or chattels are seized, pay the client the amount obtained from the sale of any of the goods or chattels so seized and return all unsold goods or chattels to the person entitled to receive them.

Liability for care of seized goods or chattels

110(3)      While seized goods or chattels are in the custody of a collection agent the collection agent shall be liable for loss of, or injury to, goods or chattels caused by his failure to exercise the care and diligence in regard to them that a careful and vigilant owner of similar goods or chattels would exercise in the custody of them in similar circumstances.

Disclosure of actions

110(4)      On demand by a client, or by the director, a collection agent shall disclose within four days the actions taken and the results obtained in respect of any account referred to him for collection, but neither a client nor the director shall demand disclosure in respect of any account more frequently than once in any month.

Surrender of documents

110(5)      Within 30 days after demand by a client therefor, a collection agent shall surrender any documents or records supplied to him by the client in respect of any account referred to him by the client, and shall cease immediately to pursue his efforts to obtain payment from the debtor.

Application of subsection (5)

110(6)      The provisions of subsection (5) apply notwithstanding any agreement to the contrary entered into between a collection agent and a client.

Failure to locate creditor

111(1)      Where a collection agent has collected moneys on behalf of a creditor, and is unable to locate the person entitled to receive the moneys within six months after the moneys have been collected; he shall pay the moneys, less his agreed charges, to the minister with a statement thereof showing the full name and address last known to him of the person entitled to the moneys.

Disposal of moneys

111(2)      Where the minister receives moneys under subsection (1), he shall deposit the moneys with the court; and if no claim for the moneys arises within seven years of the date of deposit of the moneys with the minister, the moneys shall be paid into the Consolidated Fund and are thereupon forfeited to the Crown.

Application of the Part

111(3)      Notwithstanding any agreement to the contrary entered into before or after the coming into force of this Act, this Part applies to all collection practices or seizures which take place after this Act comes into force.

Verification of information

112         Where under this Act any information is required to be given to the director by a collection agent, the collection agent shall, upon request of the director, give the information verified by affidavit.

PART XIII

CREDIT CARDS

Definitions

113         In this Part

"credit card" means any card, plate, coupon, book or other document whereby the holder is able to obtain goods or services on credit or to obtain a loan of money whether or not there is any cost of borrowing or default charge for the credit or loan; (« carte de crédit »)

"holder" means the person to whom a credit card is issued in accordance with subsection 114(1); (« détenteur »)

"issuer" means the person who issues the credit card. (« émetteur »)

Limitation on issuance of credit card

114(1)      No person shall issue, renew or substitute a credit card to another person except on the written or verbal request of that other person.

Onus of proof

114(2)      The onus of proof that a request for a credit card was in fact made lies on the issuer.

Non-application of section 114

115(1)      Section 114 does not apply to credit cards issued in renewal of, or substitution for, any credit card issued if there is no change in, or addition to, any of the terms and conditions under which the card may be used and, the person to whom the card is issued has not voluntarily surrendered or refused a card previously issued to him by the same issuer.

Refusal of a credit card

115(2)      A card holder may give to a card issuer, verbal or written notice of his voluntary surrender or refusal of a credit card for the purposes of subsection (1).

Liability where credit card lost

116(1)      Despite any agreement entered into before or after the coming into force of this Part, where a holder has lost a credit card or a credit card has been stolen, the holder is not liable for any debt incurred through its use after he or she has notified the issuer in accordance with subsection (1.2) that the card is lost or stolen and is no longer in his or her possession or control.

Liability for unauthorized use of credit card information

116(1.1)    Despite any agreement entered into before or after the coming into force of this Part, where a debt has been incurred through the unauthorized use of credit card information, the holder is not liable for the debt if he or she notifies the issuer of the unauthorized use in accordance with subsection (1.2) within 30 days after the date of issue of the first credit card statement to include the debt.

Methods of giving notice

116(1.2)    For the purposes of subsections (1) and (1.1), notice to the issuer must be given by personal delivery or by registered mail, fax, e-mail or another method that is capable of providing the holder with confirmation of delivery of the notice.

Liability of credit card holder

116(2)      A holder is not liable for any debt in excess of the lesser of

(a) $50.; or

(b) the maximum amount of credit that is available to the holder under a written agreement with the issuer;

where the debt is incurred by use of the credit card by an unauthorized person prior to the time at which the holder gave notice to the issuer pursuant to subsection (1).

Liability of card holder where card surrendered

116(3)      Where a card issuer, either directly or through a person acting as agent of the issuer, obtains surrender of a credit card by a card holder, the card holder is not liable for any use of the card after it has been surrendered.

Duties of agent upon surrender of credit card

116(4)      Where any person as an agent of the issuer of a credit card, accepts the surrender of a credit card from a card holder he shall

(a) give the card holder a receipt for each card surrendered; and

(b) immediately forward each credit card to the card issuer with notice of surrender; and

(c) be responsible for any unauthorized use of any surrendered credit card between the time of surrender and transmittal of the credit card to the issuer.


S.M. 2000, c. 32, s. 35.

Onus of proof in disputes

117         Where a dispute arises between a holder and an issuer under section 116 the burden of proof rests with the issuer to show that the debt was incurred by the holder or a person authorized by the holder to use the card.

PART XIV

118 to 120  Repealed.


S.M. 1996, c. 64, s. 5 and 6.

PART XV

PREPAID SERVICES

Definitions

121         In this Part,

"buyer" means a person who

(a) enters into a contract with a seller, or

(b) who is discussing a contract with a seller with a view to entering into the contract; (« acheteur »)

"contract" means a contract for any services to which this Part applies; (« contrat »)

"fee" means all amounts payable by a buyer for services, and includes payments for initiation or membership or both, and all costs associated with the purchase of services from a seller; (« frais »)

"seller" means a person who is in the business of selling, or providing or offering to provide, services; (« vendeur »)

"services" means services of any kind whatsoever, and facilities of any kind whatsoever whether or not provided in conjunction with services, relating to

(a) health, fitness, exercise, body building or conditioning, modelling, talent development, dieting, martial arts, sports or dance activities or other activities of a similar nature, or

(b) dating or introduction clubs, or

(c) such other activities, clubs or matters as may be prescribed by regulation,

and may include instructional services. (« services »)


S.M. 1989-90, c. 53, s. 23.

Application

122(1)      This Part applies to services for which payment in advance is required.

Exception

122(2)      This Part does not apply to services that are provided

(a) by a non-profit organization; or

(b) by a corporation without share capital; or

(c) by a cooperative within the meaning of The Cooperatives Act; or

(d) by a seller whose services require registration under The Private Vocational Institutions Act; or

(e) by The University of Manitoba, The University of Winnipeg or Brandon University; or

(f) by a school district or school division established under The Public Schools Act; or

(g) by golf, curling or racquet clubs or other clubs of a similar nature; or

(h) as incidental to the main business of the operator; or

(i) by a class of sellers specified in the regulations.

Existing contracts

122(3)      This Part does not apply to a contract in force at the time this Part comes into force.


S.M. 1989-90, c. 53, s. 23; S.M. 1998, c. 51, s. 3; S.M. 2002, c. 23, s. 24.

Written contract

123(1)       No seller shall receive advance payment for services from a buyer with whom the seller does not have a written contract setting out

(a) the names and addresses of the seller and buyer;

(b) a description of the services to be provided under the contract;

(c) the total fee for the services to be provided under the contract;

(d) the date that the services will be made available, if the services or any part of the services are not available at the time of entering into the contract;

(e) a statement that complies with subsection 123(3); and

(f) a schedule of payments that complies with section 125.

Cancellation within 7 days

123(2)      Any contract to which this Part applies may be cancelled by notice in writing within 7 days after the day on which the buyer enters into the contract or the services are available, whichever is the later, by serving the notice by registered mail or personal delivery on the seller at the seller's usual place of business; and the notice is good and effective if, however expressed, it indicates the intention of the buyer to withdraw from the transaction.

Statement required in contract

123(3)      Every contract to which this Part applies shall be accompanied by a written notice which shall have printed or typed at the top of the first page, in type not less than 10 point in size, the following words or such other words as may in the view of the director provide the same information to the buyer:

"You may cancel this contract by notice in writing within 7 days after you sign it.  If you do not cancel this contract within the 7 days, you may not be able to cancel it afterwards.  You may send your notice by registered mail to (name of seller and address of seller's usual place of business shall be inserted here) or you may deliver it there yourself.  You must mail it or deliver it before the end of the 7 days.  If you cancel the contract, any moneys you paid will be returned to you."

Effect of cancellation

123(4)      Upon the written cancellation of a contract under subsection (2),

(a) subject to subsection (6), every liability or obligation of the buyer under the contract is extinguished; and

(b) on the buyer's demand, the seller shall repay to the buyer immediately all amounts already paid by or on behalf of the buyer in respect of the contract, whether paid for or on account of the contract price or for or on account of any fee, cost of borrowing or other amount paid under or pursuant to or as incidental to the contract, and whether paid to the seller or another person, but the seller may retain any portion of the amounts so paid by the buyer for which services have been provided, and the portion to be so retained by the seller shall be calculated as that proportion of the amounts so paid by the buyer which bears the same mathematical relationship to the total of the amounts so paid as the period of the contract ending on the date of the cancellation bears to the total period of the contract.

Negotiation of new contract

123(5)      Upon receiving written notice of cancellation of a contract under subsection (2), the seller shall fulfil the seller's obligations under subsection (4) before attempting to renegotiate the contract or to negotiate another contract with the buyer.

Rights of cancellation

123(6)      The right of the buyer to cancel a contract under this Part is not affected by

(a) the partial consumption of the services by the buyer; or

(b) the partial performance of any services by the seller.

Reckoning of Time

123(7)      In reckoning the time for giving notice under this Part, Sundays and holidays shall be excluded.

Refund

123(8)      A seller who receives payments on a contract that does not meet the requirements of subsection (1) shall, on demand by the buyer, refund to the buyer all payments for services that have not been performed, and the contract is void thereafter.


S.M. 1989-90, c. 53, s. 23.

Prohibition

124(1)      No contract may be made between two parties to an existing contract unless the subsequent contract is for services that are distinctly different from the services to be provided under the existing contract, and a different term or a different commencement date does not constitute, for the purposes of this subsection, a distinct difference in the services to be provided.

Repayment

124(2)      A seller shall repay to the buyer, on demand, every amount paid on a new contract for services that are already included in an existing contract.


S.M. 1989-90, c. 53, s. 23.

Maximum term

125(1)      No contract shall be made for a term longer than 12 months.

Fee payable by instalments

125(2)      A seller shall not collect payment of a fee under a contract unless the fee is payable in more than one instalment and

(a) the amount of each instalment is approximately the same;

(b) the length of each time period covered by each instalment is approximately the same; and

(c) each instalment is payable on or shortly before the day a time period commences.

Refund

125(3)      A seller who receives payments in contravention of subsection (2) shall refund those payments to the buyer on demand.


S.M. 1989-90, c. 53, s. 23; S.M. 1998, c. 45, s. 2.

No provision for renewal

126         No contract to which this Part applies shall include any provision for the renewal of that contract prior to or upon the date of its expiry.


S.M. 1989-90, c. 53, s. 23.

PART XVI

INTERNET AGREEMENTS

"Internet" defined

127         In this Part, "Internet" means the open and decentralized global network connecting networks of computers and similar devices to each other for the electronic exchange of information using standardized communication protocols.


S.M. 2000, c. 32, s. 36.

Application

128         This Part applies to retail sale or retail hire-purchase agreements formed by Internet communications.


S.M. 2000, c. 32, s. 36.

Buyer may cancel if not provided information

129(1)      If a seller fails to provide prescribed information to a buyer in writing before entering into a retail sale or retail hire-purchase agreement with the buyer, the buyer may cancel the agreement before accepting delivery of the goods or services under the agreement.

Electronic methods of providing information

129(2)      For the purpose of subsection (1), a seller shall be considered to have provided the prescribed information to a buyer in writing if

(a) the information is sent to the e-mail address provided by the buyer to the seller for the provision of information related to the retail sale or retail hire-purchase agreement; or

(b) the information is made accessible to the buyer on the Internet in a manner that ensures that

(i) the buyer has accessed the information before entering into the agreement, and

(ii) the information is capable of being retained and printed by the buyer.


S.M. 2000, c. 32, s. 36; S.M. 2001, c. 10, s. 4.

Buyer may cancel for failure to deliver

130(1)      Before accepting delivery of goods or services under a retail sale or retail hire-purchase agreement, the buyer may cancel the agreement if the seller does not

(a) in the case of prescribed goods, deliver the goods by the delivery date specified in the agreement or by any other delivery date agreed to in writing, either on paper or by electronic communication;

(b) in the case of other goods, deliver the goods within 30 days after

(i) the delivery date specified in the agreement or any other delivery date agreed to in writing, either on paper or by electronic communication, or

(ii) if a delivery date cannot be determined under subclause (i), the date of the agreement;

(c) in the case of travel, transportation or accommodation services or prescribed services, begin to provide the services on the commencement date specified in the agreement or any other commencement date agreed to in writing, either on paper or by electronic communication; and

(d) in the case of other services, begin to provide the services within 30 days after the commencement date specified in the agreement or any other commencement date agreed to in writing, either on paper or by electronic communication.

Attempted delivery

130(2)      For the purpose of subsection (1), a seller is deemed to have delivered the goods or services under a retail sale or retail hire-purchase agreement

(a) if delivery was attempted but was refused by the buyer, on the day that delivery was attempted; or

(b) if delivery was attempted but not made because no person was available to accept delivery for the buyer, on the day that the buyer was given notice that the goods or services are available to be delivered or that the goods are available to be picked up by the buyer.


S.M. 2000, c. 32, s. 36; S.M. 2001, c. 10, s. 5.

Court may provide relief against cancellation

131         If in the opinion of a court it would be inequitable for an agreement to be cancelled under section 129 or 130, the court may make any order it considers appropriate.


S.M. 2000, c. 32, s. 36.

Notice of cancellation

132(1)      An agreement is cancelled under section 129 or 130 when a written notice of the cancellation is given in accordance with this section.

Method of giving notice

132(2)      A buyer may provide a notice of cancellation to the seller by personal delivery or by registered mail, fax, e-mail or any other method by which the buyer can obtain confirmation of delivery of the notice.

Wording of notice of cancellation

132(3)      A notice of cancellation is adequate if it indicates the intention of the buyer to cancel the agreement.

Effective date of cancellation

132(4)      A notice of cancellation that is given otherwise than by personal delivery is deemed to be given when sent.


S.M. 2000, c. 32, s. 36.

Effect of cancellation

133(1)      If an agreement is cancelled under section 129 or 130,

(a) every obligation of the buyer under the contract is extinguished; and

(b) the seller must refund to the buyer, within 30 days after the cancellation, all consideration paid by the buyer under the agreement, whether paid to the seller or any other person.

Delivery of services after cancellation

133(2)      If services are provided to a buyer under an agreement after the buyer has cancelled the agreement under section 129 or 130, the buyer may rescind the notice of cancellation by accepting the services. But the buyer shall not be considered to have rescinded the notice if the services are provided without the buyer being given an opportunity to refuse them.

Delivery of goods after cancellation

133(3)      If goods are delivered to a buyer under an agreement after the buyer has cancelled the agreement under section 129 or 130, the buyer may

(a) rescind the notice of cancellation by accepting the goods; or

(b) refuse to accept delivery of the goods or, having accepted delivery, return the goods, within 30 days after accepting delivery, to the seller unopened and in the same condition in which they were delivered, by any method that provides the buyer with confirmation of delivery to the seller.

Seller must accept return of goods

133(4)      The seller must accept a return of goods that were returned or refused delivery by a buyer under clause (3)(b).

Seller responsible for cost of returning goods

133(5)      The seller is responsible for the cost of returning goods under clause (3)(b).

Effective date of return

133(6)      Goods that are returned by the buyer under clause (3)(b) otherwise than by personal delivery are deemed for the purpose of that clause to have been returned when sent by the buyer to the seller.


S.M. 2000, c. 32, s. 36.

Buyer's recourse re credit card charges

134(1)      A buyer who has charged to a credit card account all or any part of the consideration payable under a retail sale or retail hire-purchase agreement may request the credit card issuer to cancel or reverse the credit card charge, and any associated interest or other charges, if

(a) the buyer has cancelled the agreement under section 129 or 130, and the consideration has not been refunded within the 30-day period referred to in clause 133(1)(b); or

(b) the agreement is unenforceable because of subsection 20(3) of The Electronic Commerce and Information Act and the consideration has not been refunded to the buyer within 30 days after the buyer notified the seller of the error referred to in that subsection.

Credit card issuer must reverse or cancel charges

134(2)      On receiving a request under subsection (1) that satisfies prescribed requirements, the credit card issuer must cancel or reverse the credit card charge and any associated interest or other charges.

Application

134(3)      This section applies despite any agreement to the contrary entered into before or after this Part comes into force.


S.M. 2000, c. 32, s. 36.

Other rights not affected

135         The rights of the buyer under this Part in respect of a retail sale or retail hire-purchase agreement are in addition to, and do not affect, any other right or remedy the buyer has under or in respect of the agreement or at law.


S.M. 2000, c. 32, s. 36.