Bill 63 - Financial and Consumer Services Commission Act

BILL 63

Financial and Consumer Services Commission Act

Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:

Definitions

1 The following definitions apply in this Act.

“Commission” means the Financial and Consumer Services Commission continued under section 3. (Commission)

“Court of Appeal” means The Court of Appeal of New Brunswick. (Cour d’appel)

“Court of Queen’s Bench” means The Court of Queen’s Bench of New Brunswick. (Cour du Banc de la Reine)

“financial and consumer services legislation” means (législation en matière de services financiers et de services aux consommateurs)

(a) this Act,

(b) the Auctioneers Licence Act,

(d) the Commissioners for Taking Affidavits Act,

(e) the Consumer Product Warranty and Liability Act,

(f) the Co-operative Associations Act,

(g) the Cost of Credit Disclosure Act,

(h) the Credit Unions Act,

(i) the Direct Sellers Act,

(j) the Franchises Act,

(k) the Gift Cards Act,

(l) the Insurance Act,

(m) the Loan and Trust Companies Act,

(n) the Nursing Homes Pension Plans Act,

(o) the Pension Benefits Act,

(p) the Pre-arranged Funeral Services Act,

(q) the Real Estate Agents Act,

(r) the Securities Act,

(s) the Securities Transfer Act,

(t) any other Act designated by regulation, and

(u) any regulation or rule made under the Acts referred to in paragraphs (a) to (t);

“hearing” includes a review or an appeal. (audience)

“hearing panel” means a hearing panel of the Tribunal constituted under section 39. (comité d’audience)

“Minister” means the Minister of Justice and includes any person designated by the Minister to act on the Minister’s behalf. (ministre)

“Registrar” means the Registrar of the Tribunal appointed under section 40. (greffier)

“regulated sector” means a sector or industry regulated under financial and consumer services legislation. (secteur réglementé)

“regulator” means (chargé de la réglementation)

(a) the Executive Director of Securities appointed under paragraph 18(2)(c),

(b) the Superintendent of Insurance appointed under paragraph 18(2)(d),

(d) the Superintendent of Credit Unions appointed under paragraph 18(2)(f),

(e) the Superintendent of Loan and Trust Companies appointed under paragraph 18(2)(g),

(f) the Inspector of Co-operative Associations appointed under paragraph 18(2)(h), and

(g) the Director of Consumer Affairs appointed under paragraph 18(2)(i).

“Tribunal” means the Financial and Consumer Services Tribunal established under section 29. (Tribunal)

Purposes of Act

2 The purposes of this Act are to

(a) enable the Commission to provide regulatory services that protect the public interest and enhance public confidence in the regulated sectors, and

(b) enable the Commission to disseminate knowledge and promote understanding of the regulated sectors and develop and conduct educational programs.

PART 1

FINANCIAL AND CONSUMER SERVICES COMMISSION

Division A

Composition of the Commission

Financial and Consumer Services Commission

3( 1) The body corporate previously constituted under the name New Brunswick Securities Commission is continued as a body corporate without share capital under the name Financial and Consumer Services Commission.

3( 2) The change of the name of the Commission does not affect the rights and obligations of the Commission, and all proceedings may be continued or commenced by and against the Commission under its new name that might have been continued or commenced by or against the Commission under its former name.

3( 3) The Commission shall consist of a chair and the number of other members the Commission recommends, which shall not be less than five nor more than ten.

3( 4) The Commission is, for all purposes, an agent of the Crown in right of the Province.

3( 5) Subject to this Act, the Commission has the capacity, rights, powers and privileges of a natural person.

Guiding principles

4 The Commission shall be guided by the following fundamental principles in carrying out its powers and duties:

(a) balancing the importance to be given to each of the purposes of financial and consumer services legislation may be required in specific cases;

(b) business and regulatory costs and other restrictions on business activities should be proportionate to the significance of the regulatory objectives sought to be realized.

Head office

5 The head office of the Commission is at The City of Saint John.

Members of the Commission

6( 1) The members of the Commission, including the chair, shall be appointed by the Lieutenant-Governor in Council for a term not exceeding five years and, subject to subsections (2) and (3), may be reappointed.

6( 2) Subject to subsection (3), a person is not eligible to serve as a member of the Commission for more than ten years.

6( 3) If a member of the Commission is appointed the chair of the Commission, he or she is eligible to be appointed as chair for a term not exceeding five years regardless of how many years the person served as a member prior to his or her appointment as chair.

6( 4) Despite subsections (2) and (3) and subject to section 9, a member of the Commission remains in office after the expiry of his or her term until he or she resigns or is reappointed or replaced.

6( 5) Despite subsections (2) and (3) and subject to section 9, a member of the Commission who held office immediately before the commencement of this subsection, other than the chair, continues in office until he or she resigns or is reappointed or replaced.

Chair of the Commission

7( 1) Despite subsections 6(2) and (3) and subject to section 9, the Chair of the New Brunswick Securities Commission who held office immediately before the commencement of this section shall continue as chair of the Commission until he or she resigns or is reappointed or replaced, but he or she shall not continue as the Chief Executive Officer of the Commission on the commencement of this section.

7( 2) The Public Service Superannuation Act applies to the chair of the Commission.

7( 3) Subject to the approval of the Commission, the chair of the Commission is eligible to participate in any employee benefit program established by the Board of Management.

Remuneration and expenses

8( 1) The chair and other members of the Commission are entitled to be paid the remuneration fixed in accordance with the by-laws of the Commission.

8( 2) A member of the Commission is entitled to be paid those travelling, living and other expenses reasonably incurred by him or her in the performance of his or her duties that are fixed in accordance with the by-laws of the Commission.

8( 3) A by-law of the Commission respecting the remuneration of its chair and other members is effective only if it has been approved by the Minister.

Removal from office

9 The appointment of the chair of the Commission or any other member of the Commission may be revoked by the Lieutenant-Governor in Council for cause.

Vacancy or temporary absence

10( 1) If a vacancy occurs on the Commission, the Lieutenant-Governor in Council may appoint a person to fill the vacancy for the balance of the term of the chair or other member of the Commission replaced.

10( 2) In the case of the temporary absence, illness or incapacity to act of any member of the Commission, other than the chair, the Lieutenant-Governor in Council may appoint a substitute for the member for the period of the temporary absence, illness or incapacity.

10( 3) In the case of the temporary absence, illness or incapacity to act of the chair of the Commission, his or her powers and duties shall be exercised by a member of the Commission designated by resolution of the Commission.

10( 4) A vacancy on the Commission does not impair the capacity of the Commission to act so long as a quorum is maintained.

Quorum

11 A majority of the members of the Commission constitute a quorum.

Division B

Powers and duties of the Commission

12( 1) The Commission may do the following:

(a) develop and conduct educational programs with respect to financial and consumer services; and

(b) exercise any other powers imposed on the Commission under financial and consumer services legislation.

12( 2) The Commission shall do the following:

(a) oversee the regulators;

(b) administer financial and consumer services legislation;

Receipt and disclosure of information

13( 1) For the purposes of administering financial and consumer services legislation or assisting in the administration of similar legislation of another jurisdiction, the Commission or any employee of the Commission may receive, directly or indirectly, information from any person.

13( 2) Despite any other Act and subject to section 14, information received by the Commission or an employee of the Commission under subsection (1) is confidential and shall not be disclosed to any other person unless the disclosure is authorized

(a) under this section or another provision of financial and consumer services legislation, or

(b) in writing by a regulator if the regulator determines the disclosure is in the public interest.

13( 3) For the purposes of administering financial and consumer services legislation and subject to an order of the Tribunal, a regulator may disclose any information to another regulator or any other employee of the Commission.

13( 4) For the purposes of administering financial and consumer services legislation or assisting in the administration of similar legislation of another jurisdiction and subject to an order of the Tribunal, the Commission or a regulator may disclose any information to any of the following persons:

(a) a law enforcement agency, a government, a governmental authority or a regulatory authority in another jurisdiction;

(b) a self-regulating body;

(c) a person with whom the Commission has entered into an arrangement or agreement that relates to or includes the sharing of information; or

(d) a person or body prescribed by regulation.

13( 5) Subject to an order under subsection 14(3) or (4), if, in the opinion of the Commission, the disclosure of information is not prejudicial to the public interest and is required for the protection of the public, the Commission may do any of the following:

(a) disclose the information to any person;

(b) make the information available for public inspection at the Commission offices during the normal business hours of the Commission; and

Public access to information

14( 1) Subject to subsections (2) and (3), all information or material required to be filed under financial and consumer services legislation with the Commission or a regulator shall be made available for public inspection at the Commission offices during the normal business hours of the Commission and may be published by the Commission.

14( 2) The Commission or a regulator may hold information or material or any class of information or material referred to in subsection (1) in confidence if the Commission or the regulator is of the opinion the information or material discloses intimate financial, personal or other information and the desirability of avoiding disclosure of the information in the interests of an affected person outweighs the desirability of adhering to the principle that information and material filed with the Commission or the regulator be available to the public.

14( 3) On the application of an interested person or the Commission and after giving the applicant an opportunity to be heard, the Tribunal may order that information or a class of information or material or a class of materials referred to in subsection (1) be held in confidence if the Tribunal is of the opinion the information or material discloses intimate financial, personal or other information and the desirability of avoiding disclosure of the information in the interests of an affected person outweighs the desirability of adhering to the principle that information and material filed with the Commission or the regulator be available to the public.

14( 4) A person affected by a decision under subsection (2) to hold information in confidence may appeal the decision to the Tribunal, and the Tribunal, by order, may confirm, vary or rescind the decision.

14( 5) A decision of the Tribunal under subsection (3) or (4) is final and, despite subsection 48(1), is not subject to appeal.

Delegation of Commission powers and duties

15( 1) Subject to subsection (3), the Commission may delegate in writing any of its powers or duties to the following persons:

(a) the chair of the Commission;

(b) another member of the Commission;

(d) an employee of the Commission; or

(e) a committee of the Commission established by the by-laws of the Commission.

15( 2) In a written delegation under subsection (1), the Commission

(a) may impose on the delegate terms and conditions that it considers appropriate, and

(b) in the case of a delegation of powers or duties to a regulator, may authorize the regulator to subdelegate in writing the powers or duties to another employee of the Commission and to impose on the subdelegate any terms and conditions that the regulator considers appropriate, in addition to those imposed in the Commission’s written delegation.

15( 3) The Commission shall not delegate the power to make rules under financial and consumer services legislation.

15( 4) A delegate or subdelegate to whom this section applies shall comply with the terms and conditions imposed in the Commission’s written delegation.

15( 5) A subdelegate to whom this section applies shall comply with the terms and conditions imposed on the subdelegate by the delegate.

15( 6) A decision, ruling, order, temporary order or direction made by a person under a written delegation or subdelegation made under this section shall be deemed to be a decision, ruling, order, temporary order or direction of the Commission.

Agreement for services

16 The Commission may enter into agreements with a Minister of the Crown or an agent of the Crown for the provision by employees of the department or agent, for an agreed on amount, of any service required by the Commission to carry out its powers and duties.

Advisory Committees

17( 1) The Commission may establish advisory committees.

17( 2) A committee shall consist of those members appointed by the Commission.

17( 3) The Commission may designate a member of the committee as its chair.

17( 4) A committee shall meet when requested by the Commission.

17( 5) When requested by the Commission, a committee shall consult with and advise the Commission concerning administrative, regulatory and legislative matters relating to financial and consumer services.

17( 6) A member of a committee shall serve without salary, but the Commission, in accordance with its by-laws, may establish an allowance that is payable to each member.

17( 7) A member of a committee is entitled to be paid those travelling, living and other expenses reasonably incurred by him or her in the performance of his or her duties that are fixed in accordance with the by-laws of the Commission.

Division C

Employees of the Commission

Employees and consultants

18( 1) The Commission may employ or engage those persons it considers necessary for the administration of financial and consumer services legislation.

18( 2) The Commission shall appoint from among its employees the following persons:

(a) a Chief Executive Officer;

(b) a Secretary;

(d) a Superintendent of Insurance;

(e) a Superintendent of Pensions;

(f) a Superintendent of Credit Unions;

(g) a Superintendent of Loan and Trust Companies;

(h) an Inspector of Co-operative Associations; and

(i) a Director of Consumer Affairs.

18( 3) Under the general supervision of the Commission, a person appointed under subsection (2) shall exercise the powers and perform the duties imposed on him or her by financial and consumer services legislation or the Commission or delegated to him or her under section 15 or any other Act.

18( 4) In the case of the temporary absence, illness or incapacity to act of a person appointed under subsection (2), the powers and duties of that person shall be exercised by an employee of the Commission designated by the Commission.

18( 5) The remuneration and other conditions of employment of the employees of the Commission shall be established in accordance with the by-laws of the Commission.

18( 6) The Public Service Superannuation Act applies to employees of the Commission.

18( 7) Subject to the approval of the Commission, employees of the Commission are eligible to participate in any employee benefit program established by the Board of Management.

Chief Executive Officer

19 Subject to the direction of the Commission, the Chief Executive Officer of the Commission is responsible for the general direction, supervision and control of the business and affairs of the Commission and may exercise the other powers that may be conferred on the Chief Executive Officer by the Commission.

Certificate of Secretary

20( 1) The Secretary of the Commission may do any of the following:

(a) accept service of all notices and other documents on behalf of the Commission;

(b) when authorized by the Commission, sign a decision made by the Commission; and

20( 2) A certificate purporting to be signed by the Secretary of the Commission is, without proof of the Secretary’s appointment, authority or signature, admissible in evidence and is, in the absence of evidence to the contrary, proof of the facts stated in the certificate.

20( 3) A certificate referred to in subsection (2) shall not be received in evidence unless the party intending to produce it has given to the person against whom it is to be produced reasonable notice of the party’s intention, together with a copy of the certificate.

20( 4) With leave of the court, a person against whom a certificate referred to in subsection (2) is produced may require the attendance of the person who signed the certificate for purposes of cross-examination.

Division D

Financial matters and reporting

Financial matters

21( 1) The Commission shall maintain in its own name one or more accounts in a bank, trust company or credit union designated by the Minister of Finance for the purposes of subsection 17(1) of the Financial Administration Act.

21( 2) Despite the Financial Administration Act, all money received by the Commission through the conduct of its operations or otherwise shall be deposited to the credit of the account or accounts maintained under subsection (1) and shall be administered by the Commission exclusively for the purposes of financial and consumer services legislation.

21( 3) With the approval of the Minister of Finance, the Commission may borrow money for the purposes of carrying on its activities.

21( 4) The Commission may invest money in any kind of property, real, personal or mixed, for the purposes of carrying on its activities and in doing so shall exercise the judgment and care that a person of prudence, discretion and intelligence would exercise as a trustee of the property of others.

21( 5) For the purposes of subsection (2), amounts received by the Commission from administrative penalties under financial and consumer services legislation shall not be used for the normal operating expenditures of the Commission and shall be used only for endeavours or activities that, in the opinion of the Commission, enhance or may enhance the financial market place or consumer protection.

21( 6) For the purposes of subsection (2), amounts disgorged to the Commission under paragraph 184(1)(p) or 187(4)(o) of the Securities Act shall not be used for the normal operating expenditures of the Commission and shall be used only in accordance with the regulations or rules made under that Act.

21( 7) When ordered to do so by the Minister, the Commission shall pay into the Consolidated Fund such of its surplus funds as, subject to the approval of the Board of Management, are determined by the Minister.

21( 8) In determining the amount of a payment to be made under subsection (7), the Minister shall allow those reserves for the future needs of the Commission that he or she considers appropriate and shall ensure that the payment will not impair the Commission’s ability to pay its liabilities, to meet its obligations as they become due or to fulfil its contractual commitments.

Self-financing

22 The remuneration and expenses of the chair of the Commission, the chair of the Tribunal, the other members of the Commission and of the Tribunal and the employees of the Commission and all costs, charges and expenses incurred and payable in respect of the conduct of the business and affairs of the Commission shall be paid by the Commission.

Budget

23( 1) Before December 31 of each year, the Commission shall prepare and submit to the Board of Management a proposed budget containing the estimates of the amounts required for the operation of the Commission and the Tribunal for the next fiscal year.

23( 2) The Secretary of the Board of Management may make a report on the proposed budget, containing any recommendations that he or she considers appropriate, to the chair of the Commission within 30 days after receiving the proposed budget.

Business plan

24 At least once in every fiscal year of the Commission and as directed by the Minister, the Commission shall submit to the Minister for review and approval a business plan that includes the following information:

(a) a proposed budget for the next three fiscal years;

(b) management objectives for the next three years; and

Minister’s request for information

25( 1) The Commission shall promptly give the Minister any information about its activities, operations and financial affairs that the Minister requests.

25( 2) The Minister may designate a person to examine any financial or accounting procedures, activities or practices of the Commission, and the person designated shall do so and report the results of the examination to the Minister.

25( 3) The members and employees of the Commission shall give the person designated by the Minister all the assistance and cooperation necessary to enable the person to complete the examination.

Fiscal year and financial statements

26( 1) The fiscal year of the Commission ends on March 31 of each year.

26( 2) Within six months after the end of the Commission’s fiscal year, the Commission, in accordance with generally accepted accounting principles, shall prepare annual financial statements that present the financial position, financial performance and changes in the financial position of the Commission for its most recent fiscal year.

Audit

27 The accounts and financial statements of the Commission shall be audited at least once a year by the Auditor General.

Annual report

28( 1) Within six months after the end of the Commission’s fiscal year, the Commission shall prepare and deliver to the Minister a report consisting of the following information:

(a) a summary of the activities of the Commission under financial and consumer services legislation during that fiscal year;

(b) the audited financial statements of the Commission for that fiscal year; and

28( 2) If the Legislature is in session when a report is received by the Minister under subsection (1), the Minister shall lay the report before the Legislative Assembly without delay.

28( 3) If the Legislature is not in session when a report is received by the Minister under subsection (1), the Minister shall lay the report before the Legislative Assembly within 15 days after the commencement of the next session.

PART 2

FINANCIAL AND CONSUMER SERVICES TRIBUNAL

Division A

Composition of the Tribunal

Tribunal

29( 1) There is established a tribunal called the Financial and Consumer Services Tribunal.

29( 2) The Tribunal shall consist of a chair and the number of other members the Commission recommends, which shall not be less than four nor more than 14.

Independence

30 In the performance of its adjudicative functions, the Tribunal is independent of the Commission.

Members of the Tribunal

31( 1) The members of the Tribunal, including the chair, shall be appointed by the Lieutenant-Governor in Council for a term not exceeding five years and, subject to subsections (2) and (3), may be reappointed.

31( 2) Subject to subsection (3), a person is not eligible to serve as a member of the Tribunal for more than ten years.

31( 3) If a member of the Tribunal is appointed the chair of the Tribunal, he or she is eligible to be appointed as chair for a term not exceeding five years regardless of how many years the person served as a member prior to his or her appointment as chair.

Chair of the Tribunal

32 The chair of the Tribunal shall

(a) be a barrister and solicitor who

( i) has been a member in good standing of a law society in Canada for at least ten years immediately preceding the date of appointment, and

( ii) is a member in good standing of the Law Society of New Brunswick, and

(b) have knowledge of administrative law.

Remuneration and expenses

33( 1) Subject to section 46, the chair and other members of the Tribunal are entitled to be paid the remuneration fixed in accordance with the by-laws of the Commission.

33( 2) A member of the Tribunal is entitled to be paid those travelling, living and other expenses reasonably incurred by him or her in the performance of his or her duties that are fixed in accordance with the by-laws of the Commission.

33( 3) A by-law of the Commission respecting the remuneration of the chair and other members of the Tribunal is effective only if it has been approved by the Minister.

Continuation in office

34( 1) Despite subsections 31(2) and (3) and subject to section 35, a member of the Tribunal remains in office after the expiry of the member’s term until he or she resigns or is reappointed or replaced.

34( 2) If a member of the Tribunal resigns or is replaced, the chair of the Tribunal may authorize that person to carry out and complete the duties and exercise any powers that the person would have had, if the person had not ceased to be a member of the Tribunal, in connection with any matter in respect of which there was a hearing in which the person participated as a member of the Tribunal.

34( 3) An authorization under subsection (2) continues until a final decision in respect of the matter is made.

34( 4) If a person performs duties or exercises powers under subsection (2), section 33 continues to apply as though the person were still a member of the Tribunal.

Removal from office

35 The appointment of the chair or any other member of the Tribunal may be revoked by the Lieutenant-Governor in Council for cause.

Vacancy or temporary absence

36( 1) If a vacancy occurs on the Tribunal, the Lieutenant-Governor in Council may appoint a person to fill the vacancy for the balance of the term of the chair or other member of the Tribunal replaced.

36( 2) In the case of the temporary absence, illness or incapacity to act of the chair of the Tribunal, the Minister may appoint another member of the Tribunal as acting chair for the period of the temporary absence, illness or incapacity.

Division B

Powers and duties of the Tribunal

37( 1) The Tribunal may exercise any powers imposed on the Tribunal under financial and consumer services legislation.

37( 2) The Tribunal shall perform any duties imposed on the Tribunal under financial and consumer services legislation.

Power regarding hearings

38( 1) With respect to the following matters, when the Tribunal holds a hearing under financial and consumer services legislation, the Tribunal has the same power that the Court of Queen’s Bench has for the trial of civil actions:

(a) summoning and enforcing the attendance of witnesses;

(b) compelling witnesses to give evidence under oath or in any other manner; and

(c) compelling witnesses to produce books, records, documents and things or classes of books, records, documents and things.

38( 2) On application to the Court of Queen’s Bench by the Tribunal, the failure or refusal of a person to do any of the following makes the person liable to be committed for contempt as if in breach of an order or judgment of the Court of Queen’s Bench:

(a) to attend a hearing;

(b) to take an oath at a hearing;

(d) to produce books, records, documents and things or classes of books, records, documents and things in the custody, possession or control of the person.

38( 3) The Tribunal may hold hearings within or outside New Brunswick.

38( 4) The Tribunal may hold hearings in conjunction with other bodies if it considers it appropriate and may consult with those bodies during the course of, or in connection with, the hearing.

38( 5) The Tribunal may decide all questions of fact or law arising in the course of a hearing.

38( 6) The Tribunal may receive in evidence any statement, document, record, information or thing that, in the opinion of the Tribunal, is relevant to the matter before it, regardless of whether the statement, document, record, information or thing is given or produced under oath or would be admissible as evidence in a court of law.

38( 7) A hearing shall be commenced and conducted in accordance with any rules of the Commission made under paragraph 59(3)(a).

Hearing panels of the Tribunal

39( 1) The chair of the Tribunal may assign two or more persons from among the members of the Tribunal to sit as members of a hearing panel of the Tribunal and may direct the hearing panel to hold any hearing that the Tribunal itself could hold under financial and consumer services legislation.

39( 2) A majority of the members of a hearing panel constitute a quorum at a hearing held by the hearing panel.

39( 3) A decision, ruling, order, temporary order or direction made by a hearing panel, or any action taken by a hearing panel, at a sitting of a hearing panel shall be deemed to be a decision, ruling, order, temporary order or direction of the Tribunal or action of the Tribunal, as the case may be.

39( 4) A hearing panel has, with respect to its duties, the same jurisdiction as that of the Tribunal and may exercise all the powers of the Tribunal under financial and consumer services legislation with respect to a hearing that the hearing panel is directed to hold, and, for that purpose, any reference in financial and consumer services legislation to the Tribunal is deemed to be a reference to a hearing panel.

39( 5) The chair of the Tribunal may designate a member of a hearing panel to preside at any sitting of the hearing panel.

39( 6) Two or more hearing panels may be constituted and may act simultaneously.

39( 7) A hearing panel shall hold its sittings separately from those of another hearing panel being held at the same time.

39( 8) If a hearing is being held by a hearing panel and a member of the hearing panel is for any reason unable to complete the hearing, the remaining members, if they constitute a quorum of the hearing panel, may complete the hearing.

Registrar of the Tribunal

40( 1) With the approval of the chair of the Tribunal, the Commission shall appoint from among its employees a Registrar of the Tribunal.

40( 2) The Registrar shall perform the duties imposed on him or her by financial and consumer services legislation or by the chair of the Tribunal or delegated to him or her under section 15.

40( 3) The Registrar may exercise the powers imposed on him or her by financial and consumer services legislation, by the chair of the Tribunal or by the Commission or delegated to him or her under section 15 and may do any of the following:

(a) accept service of all notices and other documents on behalf of the Tribunal;

(b) when authorized by the chair of the Tribunal, sign a decision made by the Tribunal as a result of a hearing; and

(c) certify under his or her hand a decision made by the Tribunal or a document or other thing used in connection with a hearing by the Tribunal.

40( 4) In the case of the temporary absence, illness or incapacity to act of the Registrar, the Commission, with the approval of the chair of the Tribunal, may designate another employee of the Commission to act as Registrar.

40( 5) A certificate purporting to be signed by the Registrar is, without proof of the Registrar’s appointment, authority or signature, admissible in evidence and is, in the absence of evidence to the contrary, proof of the facts stated in the certificate.

40( 6) A certificate referred to in subsection (5) shall not be received in evidence unless the party intending to produce it has given to the person against whom it is to be produced reasonable notice of the party’s intention, together with a copy of the certificate.

40( 7) With leave of the court, a person against whom a certificate referred to in subsection (5) is produced may require the attendance of the person who signed the certificate for purposes of cross-examination.

Order may be made despite expiry of registration, licence or permit

41 Despite the fact that a registration, licence or permit of a person under financial and consumer services legislation has expired, been cancelled or been surrendered, the Tribunal may make an order under financial and consumer services legislation against that person.

Revocation or variation of decision

42( 1) On the application of the Commission, a regulator or a person directly affected by a decision of the Tribunal, the Tribunal may make an order revoking or varying the decision if, in the Tribunal’s opinion, the order would not be prejudicial to the public interest.

42( 2) The Tribunal may impose any terms and conditions that the Tribunal considers appropriate on an order under this section.

Powers respecting experts

43( 1) For the following purposes, the Tribunal has the same power as the Court of Queen’s Bench has for the trial of civil actions:

(a) summoning and enforcing the attendance of a witness before an expert;

(b) compelling a witness to give evidence under oath or in any other manner before an expert; and

(c) compelling a witness to produce books, records, documents and things or classes of books, records, documents and things to an expert.

43( 2) Subsection 38(2) applies with the necessary modifications to a person who fails to or refuses to comply with a direction of the Tribunal under subsection (1).

Payment of hearing and investigation costs

44( 1) After holding a hearing, the Tribunal may order a person whose affairs were the subject of the hearing to pay the fees and expenses set out in the rules of the Commission for the costs of any investigation and the costs related to the hearing that were incurred by or on behalf of the Commission if the Tribunal

(a) is satisfied that the person has not complied with, or is not complying with, financial and consumer services legislation, or

(b) is of the opinion that the person has not acted in the public interest when a duty to act in the public interest is imposed on the person by financial and consumer services legislation.

44( 2) On application by the Commission and after holding a hearing, the Tribunal may order a person who has been convicted of an offence under financial and consumer services legislation to pay the fees and expenses set out in the rules of the Commission for the costs of an investigation in respect of the offence that were incurred by or on behalf of the Commission.

44( 3) For the purposes of subsection (1) and (2), the costs related to an investigation or a hearing that are incurred by or on behalf of the Commission include the following:

(a) costs incurred in respect of services provided by an expert, an investigator or other consultant;

(b) costs for time spent by the Commission or the staff of the Commission;

(d) costs of legal services provided to the Commission; and

(e) any costs of matters preliminary to the hearing.

44( 4) The Tribunal may prepare a certificate certifying the amount of the costs that the person is required to pay under subsection (1) or (2), and the Commission may file the certificate with a clerk of the Court of Queen’s Bench.

44( 5) A certificate filed under subsection (4) has the same force and effect as if it were a judgment of the Court of Queen’s Bench for the recovery of a debt in the amount specified in the certificate together with the costs of filing.

44( 6) The Rules of Court with respect to costs and the taxation of costs do not apply to costs referred to in this section.

Filing decision with the Court of Queen’s Bench

45( 1) The Commission may file a certified copy of a decision of the Tribunal with a clerk of the Court of Queen’s Bench, and, on being filed, that decision has the same force and effect as if it were a judgment of the Court of Queen’s Bench.

45( 2) If an order is filed under subsection (1), any amounts required to be disgorged to the Commission or an administrative penalty required to be paid to the Commission under the order may be collected as a judgment of the Court of Queen’s Bench for the recovery of a debt.

Division C

Financial matters and reporting

Provision of funding to Tribunal

46( 1) Before September 30 of each year, the chair of the Tribunal shall prepare and submit to the Commission a proposed budget containing the estimates of the amounts required for the operation of the Tribunal for the next fiscal year, including the proposed remuneration of the members of the Tribunal.

46( 2) The Commission shall allocate in its annual budget sufficient funding for the proper operation of the Tribunal, including for the remuneration of the members of the Tribunal.

46( 3) If there is a dispute as to whether the amount to be allocated by the Commission under subsection (2) is adequate, the chair of the Commission and the chair of the Tribunal shall attempt to resolve the dispute.

46( 4) If a resolution is not reached by the chair of the Commission and the chair of the Tribunal, either of them may submit the dispute to the Minister, whose decision is final.

Annual report

47( 1) Within six months after the end of the Commission’s fiscal year, the chair of the Tribunal shall prepare and deliver to the Minister a report consisting of the following information:

(a) a summary of the activities of the Tribunal under financial and consumer services legislation during that fiscal year; and

(b) any other information required by the Minister or the Lieutenant-Governor in Council.

47( 2) After delivering an annual report to the Minister, the chair of the Tribunal shall publish the report without delay.

Division D

Appeal of decision of Tribunal

Appeal

48( 1) With leave of a judge of the Court of Appeal, the Commission or a person directly affected by a final decision of the Tribunal may appeal the decision to the Court of Appeal.

48( 2) The application for leave shall be made within 30 days after the later of the making of the decision and the issuing of the reasons for the decision.

48( 3) Within the 30-day period referred to in subsection (2), a copy of the leave to appeal application and supporting documents shall be

(a) served on the other parties to the appeal, and

(b) filed with the Registrar of the Tribunal.

48( 4) Despite the fact that an appeal is taken under this section, the decision appealed from takes effect immediately, but the Tribunal or the Court of Appeal may grant a stay of the decision until disposition of the appeal.

48( 5) The Registrar shall certify to the Court of Appeal the following documents:

(a) the decision that was appealed to the Tribunal or reviewed by the Tribunal, if any;

(b) the decision of the Tribunal, together with any statement of reasons for the decision;

(d) all written submissions to the Tribunal or other material that is relevant to the appeal.

48( 6) The Minister is entitled to be heard on the argument of an appeal under this section, regardless of whether the Minister is named as a party to the appeal.

48( 7) If an appeal is taken under this section, the Court of Appeal may order the Commission, the Tribunal or a regulator to make a decision or to do any other act that the Commission, the Tribunal or the regulator, as the case may be, is authorized and empowered to do under financial and consumer services legislation and that the Court of Appeal considers proper, having regard to the material and submissions before it and to financial and consumer services legislation, and the Commission, the Tribunal or the regulator, as the case may be, shall make that decision or do that act accordingly.

48( 8) To the extent that they are not inconsistent with this section, the Rules of Court apply to an appeal under this section.

48( 9) Despite an order of the Court of Appeal on an appeal, the Tribunal may make a further decision on new material or if there is a significant change in the circumstances, and that decision is subject to this section.

PART 3

GENERAL

Administration

49 The Commission is responsible for the administration of this Act.

Immunity

50( 1) No action or other proceeding may be brought against any of the following persons for anything done or not done, or for any neglect, in the performance or exercise, or the intended performance or exercise, in good faith of a power or duty under the authority of financial and consumer services legislation:

(a) the Commission;

(b) the chair or a former chair of the Commission or Tribunal;

(d) an employee or former employee of the Commission;

(e) a person appointed under this Act; and

(f) a person acting under or who has acted under the authority of financial and consumer services legislation or the instructions of a person referred to in paragraph (a), (b), (c), (d) or (e).

50( 2) A provision in financial and consumer services legislation immunizing any person from an action or other proceeding for anything done or not done, or for any neglect, in the performance or exercise, or the intended performance or exercise, in good faith of a power or duty under the authority of that Act, which was valid and of full force and effect immediately before the commencement of this section, despite its repeal on the commencement of this section, continues to be valid and of full force and effect with respect to anything done or not done, or any neglect, which occurred before the commencement of this section.

Indemnity

51( 1) Except in relation to an action by or on behalf of the Commission, in which case the approval of the Court of Queen’s Bench must first be obtained, the Commission may indemnify the chair or a former chair of the Commission or Tribunal, a member or former member of the Commission or Tribunal or an employee or former employee of the Commission, and his or her heirs and legal representatives, against all costs, charges and expenses, including an amount paid to settle an action or satisfy a judgment, reasonably incurred by him or her in relation to a civil, criminal or administrative action or proceeding to which he or she is made a party by reason of being or having been the chair of the Commission or Tribunal, a member of the Commission or Tribunal or an employee of the Commission, if he or she

(a) acted honestly and in good faith with a view to the best interests of the Commission or Tribunal, as the case may be, and

(b) in the case of a criminal or administrative action or proceeding that is enforced by a monetary penalty, had reasonable grounds for believing that his or her conduct was lawful.

51( 2) Despite anything in this section, a person referred to in subsection (1) is entitled to indemnity from the Commission in respect of all costs, charges and expenses reasonably incurred in connection with the defence of any civil, criminal or administrative action or proceeding to which the person is made a party by reason of being or having been the chair of the Commission or Tribunal, a member of the Commission or Tribunal or an employee of the Commission if the person seeking indemnity

(a) was substantially successful on the merits of the person’s defence of the action or proceeding,

(b) fulfils the conditions set out in paragraphs (1)(a) and (b), and

51( 3) The Commission may purchase and maintain insurance for the benefit of a person referred to in subsection (1) against any liability incurred by that person as the chair of the Commission or Tribunal, as a member of the Commission or Tribunal or as an employee of the Commission, except if the liability relates to the failure of that person to act honestly and in good faith with a view to the best interests of the Commission or Tribunal, as the case may be.

51( 4) The Commission, or a person referred to in subsection (1), may apply to the Court of Queen’s Bench for an order approving an indemnity under this section, and the Court of Queen’s Bench may so order and make any further order it considers appropriate.

51( 5) On an application under subsection (4), the Court of Queen’s Bench may order notice to be given to any interested person, and that person is entitled to appear and be heard in person or by legal counsel.

Sending information or material

52( 1) Unless otherwise provided by financial and consumer services legislation, any information or material that under financial and consumer services legislation is required to be sent to a person may be

(a) served on the person in the manner in which personal service may be made under the Rules of Court,

(b) sent to the person by mail, or

52( 2) Unless otherwise provided by financial and consumer services legislation, any information or material that under financial and consumer services legislation is required to be served on a person shall be served on the person in the manner in which personal service may be made under the Rules of Court.

52( 3) Information or material sent to a person under paragraph (1)(b) or (c) shall be sent to the person

(a) at the last address known for that person by the sender of the information or material,

(b) at the address for service in New Brunswick filed by that person with a regulator, or

(c) at the address of the person’s solicitor if the person, or the solicitor, has advised that the solicitor is acting for the person.

52( 4) Information or material shall be deemed to have been personally served on the Commission if it is deposited at an office of the Commission during the normal business hours of the Commission.

52( 5) Information or material sent in accordance with paragraph (1)(b) shall be deemed to have been received by the person to whom it was sent

(a) if mailed by ordinary mail, on the seventh day after mailing, or

(b) if mailed by registered mail, on the earlier of the seventh day after mailing and the day its receipt was acknowledged in writing by the person to whom it was sent or by a person accepting it on that person’s behalf.

Conflict with the Right to Information and Protection of Privacy Act

53 If a provision of this Act is inconsistent or in conflict with a provision of the Right to Information and Protection of Privacy Act, the provision of this Act prevails.

Studies

54 The Minister, in writing, may require the Commission to study and make recommendations in respect of any matter of a general nature under or affecting financial and consumer services legislation.

Policy statements

55( 1) The Commission may issue policy statements, and other instruments the Commission considers advisable, to facilitate the exercise of its powers and the performance of its duties under financial and consumer services legislation.

55( 2) The Regulations Act does not apply to a policy statement or other instrument referred to in subsection (1).

Memorandum of understanding

56( 1) No agreement, memorandum of understanding or arrangement entered into by the Commission shall come into effect without the approval of the Minister.

56( 2) If the Minister approves an agreement, memorandum of understanding or arrangement referred to in subsection (1), it comes into effect on the date specified in the agreement, memorandum of understanding or arrangement and, if no date is specified, on the date that the Minister approves it.

56( 3) This section does not apply to the following documents:

(a) an agreement, memorandum of understanding or arrangement relating to the following matters:

( i) the administration and management of the Commission’s business and affairs;

( ii) the harmonization of the regulation of financial and consumer services; or

( iii) interjurisdictional cooperation between the Commission and any other regulatory authority; or

(b) an agreement, memorandum of understanding or arrangement entered into under section 204 of the Securities Act.

Confidential information

57 The Minister is entitled to keep confidential any information or material received from the Commission that the Commission was entitled to keep confidential.

By-laws

58( 1) The Commission may make by-laws governing the administration, management and conduct of its affairs, including, but not limited to, the following:

(a) setting out additional powers and duties of the chair of the Commission, a person appointed under subsection 18(2) or the Registrar; and

(b) governing the establishment, operation or dissolution of committees of the Commission and delegating the powers and duties of the Commission to the committees.

58( 2) A by-law made by the Commission becomes effective on the date determined by resolution of the Commission.

58( 3) Despite subsection (2), a by-law of the Commission with respect to the remuneration of the members of the Commission or the Tribunal is not effective until it is approved in writing by the Minister.

58( 4) As soon as practicable after a by-law made by the Commission becomes effective, the Commission shall publish the by-law electronically and publish notice of the by-law in The Royal Gazette.

58( 5) The Regulations Act does not apply to by-laws made by the Commission.

58( 6) Despite section 46 and subject to subsection (3), the Commission may make a by-law with respect to the remuneration of and reimbursement of expenses incurred by members of the Tribunal, and the by-law

(a) may be made retroactive to a date no earlier than July 1, 2013, and

(b) shall be replaced as soon as practicable by a by-law made after the first budget of the Commission after the commencement of this section takes effect.

58( 7) Subsection (6) expires on the date the Commission makes a by-law in accordance with paragraph (6)(b).

Rules

59( 1) Despite any other Act, the Commission may make rules

(a) prescribing the fees payable to the Commission, including but not limited to, fees for services provided by the Commission or an employee of the Commission or other fees in connection with the administration of financial and consumer services legislation;

(b) prescribing forms to be used for the purposes of financial and consumer services legislation;

(c) prescribing the following in relation to assessments for recovering the costs and expenses of the Commission, the Tribunal, a regulator or any other person in connection with the administration of financial and consumer services legislation:

( i) the amount of an assessment;

( ii) the method, manner, time and frequency of determining, imposing or paying an assessment;

( iii) the use of different methods of assessment in relation to different classes of persons; and

( iv) the interest that an assessment bears or the method of determining that interest;

(d) determining for the purposes of paragraph 94(5)(a) of the Insurance Act an amount to be assessed to each licensed insurer;

(e) prescribing the following in relation to assessments for the purposes of subsection 291(2) of the Credit Unions Act:

( i) the amount to be assessed in relation to each credit union;

( ii) the method, manner, time and frequency of determining, imposing or paying an assessment; and

( iii) the use of different methods of assessment in relation to different credit unions;

(f) determining the interest that an assessment bears for the purposes of subsection 291(3) of the Credit Unions Act;

(g) prescribing the following in relation to assessments for the purposes of subsection 232.1(2) of the Loan and Trust Companies Act:

( i) the amount to be assessed in relation to each licensed company;

( ii) the method, manner, time and frequency of determining, imposing or paying an assessment; and

( iii) the use of different methods of assessment with respect to different companies;

(h) governing conflicts of interest for members of the Commission or the Tribunal and employees of the Commission.

59( 2) In financial and consumer services legislation, a reference to “regulation” includes a reference to a rule made under subsection (1) unless the context otherwise requires.

59( 3) On the recommendation of the chair of the Tribunal or with the consent of that chair, the Commission may make rules

(a) governing the practice and procedure of the Tribunal for hearings permitted or required under financial and consumer services legislation, including rules relating to the disclosure of evidence before a hearing;

(b) prescribing fees and expenses for the purposes of section 44.

59( 4) The Lieutenant-Governor in Council may, by order, amend or repeal a rule made by the Commission.

59( 5) Subject to the approval of the Minister, the Commission, concurrently with making a rule, may make a regulation that amends or repeals a provision of a regulation made by the Lieutenant-Governor in Council under financial and consumer services legislation or by the Commission under this subsection that in the opinion of the Commission is necessary or advisable to effectively implement the rule.

59( 6) A regulation made under subsection (5) is not effective before the rule referred to in that subsection comes into force.

59( 7) Subject to subsection (6), a regulation made under subsection (5) may be retroactive in its operation.

59( 8) The Regulations Act does not apply to the rules made under this Act.

59( 9) If there is a conflict or an inconsistency between a regulation made by the Lieutenant-Governor in Council under this or any Act and a rule made under this Act, the regulation prevails, but in all other respects a rule has the same effect as a regulation.

Notice and publication of rules

60( 1) When a rule is made under section 59, as soon as practicable after the rule is made, the Commission shall

(a) publish the rule electronically, and

(b) publish in The Royal Gazette notice of the rule in accordance with the regulations.

60( 2) Without delay after the Commission makes a rule, it shall make a copy of the rule available for public inspection at each of the Commission’s offices during the normal business hours of the Commission.

60( 3) When notice of a rule has been published in The Royal Gazette in accordance with paragraph (1)(b), a person affected by the rule shall be deemed to have notice of it on the date the rule is published in accordance with paragraph (1)(a).

Changes by Secretary of the Commission

61 The Secretary of the Commission may make changes respecting form, style, numbering and typographical, clerical or reference errors in a rule made by the Commission without changing the substance of the rule if the changes are made before the date the rule is published in accordance with paragraph 60(1)(a).

Consolidated rules

62( 1) The Secretary of the Commission may maintain a consolidation of the rules made by the Commission.

62( 2) In maintaining a consolidation of the rules, the Secretary of the Commission may make changes respecting form and style and respecting typographical errors without changing the substance of a rule.

62( 3) The Commission may publish the consolidated rules in the frequency that it considers appropriate.

62( 4) A consolidated rule does not operate as new law but shall be interpreted as a consolidation of the law contained in the original rule and any subsequent amendments.

62( 5) In the event of an inconsistency between a consolidated rule published by the Commission and the original rule or a subsequent amendment, the original rule or amendment prevails to the extent of the inconsistency.

Regulations

63 The Lieutenant-Governor in Council may make regulations

(a) designating an Act for the purposes of the definition “financial and consumer services legislation”;

(b) prescribing additional powers or duties of the Commission, the Tribunal, person appointed under subsection 18(2) or the Registrar;

(d) establishing the practices and procedures that are to be followed by the Commission in making or amending rules;

(e) providing for the form and content of a notice of a rule to be published in The Royal Gazette under paragraph 60(1)(b);

(f) governing the commencement of rules made by the Commission and establishing the period during which rules made by the Commission are effective.

PART 4

TRANSITIONAL PROVISIONS AND COMMENCEMENT

Transfer of personal property

64 On the commencement of this section, the Commission is entitled to all records, personal property and assets, not including real property, used in the operation of the Justice Services Division of the Department of Justice and Attorney General immediately before the commencement of this section.

Deemed appointments

65( 1) The person holding the office of Secretary of the New Brunswick Securities Commission under the Securities Act immediately before the commencement of this section shall be deemed to be appointed as Secretary under paragraph 18(2)(b) on the commencement of this section.

65( 2) The person holding the office of Executive Director of the New Brunswick Securities Commission under the Securities Act immediately before the commencement of this section shall be deemed to be appointed as Executive Director of Securities under paragraph 18(2)(c) on the commencement of this section.

65( 3) The person holding the office of Superintendent of Insurance under the Insurance Act immediately before the commencement of this section shall be deemed to be appointed as Superintendent of Insurance under paragraph 18(2)(d) on the commencement of this section.

65( 4) A person holding the office of Deputy Superintendent of Insurance under the Insurance Act immediately before the commencement of this section shall be deemed to be appointed as a Deputy Superintendent of Insurance by the Commission under section 3 of that Act on the commencement of this section.

65( 5) The person holding the office of Superintendent of Pensions under the Pension Benefits Act immediately before the commencement of this section shall be deemed to be appointed as Superintendent of Pensions under paragraph 18(2)(e) on the commencement of this section.

65( 6) The person holding the office of Superintendent of Credit Unions under the Credit Unions Act immediately before the commencement of this section shall be deemed to be appointed as Superintendent of Credit Unions under paragraph 18(2)(f) on the commencement of this section.

65( 7) The person holding the office of Superintendent of Loan and Trust Companies immediately before the commencement of this section shall be deemed to be appointed as Superintendent of Loan and Trust Companies under paragraph 18(2)(g) on the commencement of this section.

65( 8) The person holding the office of Inspector of Co-operative Associations under the Co-operative Associations Act immediately before the commencement of this section shall be deemed to be appointed as Inspector of Co-operative Associations under paragraph 18(2)(h) on the commencement of this section.

65( 9) The person holding the office of Registrar of Co-operatives under the Co-operative Associations Act immediately before the commencement of this section shall be deemed to be appointed as Registrar of Co-operatives by the Commission under that Act on the commencement of this section.

Liability

66( 1) The debts and other liabilities of the Crown in right of the Province incurred before the commencement of this Act under financial and consumer services legislation or in regard to the administration of that legislation that are in existence immediately before the commencement of this Act continue to be vested in the Crown in right of the Province on the commencement of this section.

66( 2) No action or other proceedings lies, shall be instituted or shall be continued against the Commission for any liability that continues to be vested in the Crown in right of the Province under subsection (1).

66( 3) Nothing in this section shall expose or cause the Crown in right of the Province to be exposed to or to be liable for any greater liability than would have occurred had this section not come into force.

References

67( 1) A reference to the New Brunswick Securities Commission in an Act, other than this Act, or in a regulation, rule, order, by-law, agreement or other instrument or document shall be read as a reference to the Financial and Consumer Services Commission unless the context otherwise requires.

67( 2) A reference to the Secretary of the New Brunswick Securities Commission appointed under the Securities Act in an Act, other than this Act, or in a regulation, rule, order, by-law, agreement or other instrument or document shall be read as a reference to the Secretary appointed under paragraph 18(2)(b) unless the context otherwise requires.

67( 3) A reference to the Executive Director of the New Brunswick Securities Commission appointed under the Securities Act in an Act, other than this Act, or in a regulation, rule, order, by-law, agreement or other instrument or document shall be read as a reference to the Executive Director of Securities appointed under paragraph 18(2)( c) unless the context otherwise requires.

67( 4) A reference to the Superintendent of Insurance appointed under the Insurance Act in an Act, other than this Act, or in a regulation, rule, order, by-law, agreement or other instrument or document shall be read as a reference to the Superintendent of Insurance appointed under paragraph 18(2)( d) unless the context otherwise requires.

67( 5) A reference to a Deputy Superintendent of Insurance appointed under the Insurance Act by the Lieutenant-Governor in Council in an Act, other than this Act, or in a regulation, rule, order, by-law, agreement or other instrument or document shall be read as a reference to a Deputy Superintendent of Insurance appointed by the Commission under section 3 of the Insurance Act unless the context otherwise requires.

67( 6) A reference to the Superintendent of Pensions appointed under the Pension Benefits Act in an Act, other than this Act, or in a regulation, rule, order, by-law, agreement or other instrument or document shall be read as a reference to the Superintendent of Pensions appointed under paragraph 18(2)( e) unless the context otherwise requires.

67( 7) A reference to the Superintendent of Credit Unions appointed under the Credit Unions Act in an Act, other than this Act, or in a regulation, rule, order, by-law, agreement or other instrument or document shall be read as a reference to the Superintendent of Credit Unions appointed under paragraph 18(2)( f) unless the context otherwise requires.

67( 8) A reference to the Superintendent of Loan and Trust Companies appointed under the Loan and Trust Companies Act in an Act, other than this Act, or in a regulation, rule, order, by-law, agreement or other instrument or document shall be read as a reference to the Superintendent of Loan and Trust Companies appointed under paragraph 18(2)( g) unless the context otherwise requires.

67( 9) A reference to the Inspector of Co-operative Associations appointed under the Co-operative Associations Act in an Act, other than this Act, or in a regulation, rule, order, by-law, agreement or other instrument or document shall be read as a reference to the Inspector of Co-operative Associations appointed under paragraph 18(2)( h) unless the context otherwise requires.

67( 10) A reference to the Registrar of Co-operatives appointed under the Co-operative Associations Act by the Lieutenant-Governor in Council in an Act, other than this Act, or in a regulation, rule, order, by-law, agreement or other instrument or document shall be read as a reference to the Registrar of Co-operative Associations appointed by the Commission under the Co-operative Associations Act unless the context otherwise requires.

Continuation of appointments

68( 1) Except as otherwise provided by this Act, an appointment made by the New Brunswick Securities Commission under the Securities Act that was valid and of full force and effect immediately before the commencement of this section and that if made after the commencement of this section would be made under financial and consumer services legislation by the Financial and Consumer Services Commission

(a) continues to be valid and of full force and effect until the appointee is reappointed or ceases to hold office under financial and consumer services legislation, as the case may be, and

(b) shall be deemed to be an appointment made by the Financial and Consumer Services Commission.

68( 2) Except as otherwise provided by this Act, an appointment made by the Minister under financial and consumer services legislation that was valid and of full force and effect immediately before the commencement of this section and that if made after the commencement of this section would be made under that legislation by the Commission or a regulator

(a) continues to be valid and of full force and effect until the appointee is reappointed or ceases to hold office under financial and consumer services legislation, as the case may be, and

(b) shall be deemed to be an appointment made by the Commission or the regulator, as the case may be.

68( 3) An appointment made under financial and consumer services legislation by the Superintendent of Insurance appointed under the Insurance Act, the Superintendent of Pensions appointed under the Pension Benefits Act, the Superintendent of Credit Unions appointed under the Credit Unions Act, the Superintendent of Loans and Trust Companies appointed under the Loan and Trust Companies Act or the Inspector of Co-operative Associations appointed under the Co-operative Associations Act that was valid and of full force and effect immediately before the commencement of this section and that if made after the commencement of this section would be made under that legislation by a regulator

(a) continues to be valid and of full force and effect until the appointee is reappointed or ceases to hold office under financial and consumer services legislation, as the case may be, and

(b) shall be deemed to be an appointment made by the regulator.

Continuation of decisions

69( 1) The following definitions apply in this section.

“agreement” includes an arrangement. (accord)

“decision” includes a ruling, order, temporary order, direction, determination, authorization, requirement, approval, recommendation or resolution. (décision)

69( 2) A rule, by-law, decision or agreement of the New Brunswick Securities Commission that was valid and of full force and effect immediately before the commencement of this subsection

(a) continues to be valid and of full force and effect, and

(b) shall be deemed to be a rule, by-law, decision or agreement of the Financial and Consumer Services Commission.

69( 3) A decision or agreement of the Minister or the Lieutenant-Governor in Council that was valid and of full force and affect immediately before the commencement of this section under financial and consumer services legislation and that if made after the commencement of this section would be made under that legislation by the Commission, the Tribunal or a regulator

(a) continues to be valid and of full force and effect, and

(b) shall be deemed to be a decision or an agreement of the Commission, Tribunal or regulator, as the case may be.

69( 4) A decision or agreement of the Executive Director of the New Brunswick Securities Commission appointed under the Securities Act, the Superintendent of Insurance appointed under the Insurance Act, the Superintendent of Pensions appointed under the Pension Benefits Act, the Superintended of Credit Unions appointed under the Credit Unions Act, the Superintendent of Loans and Trust Companies appointed under the Loan and Trust Companies Act or the Inspector of Co-operative Associations appointed under the Co-operative Associations Act that was valid and of full force and effect immediately before the commencement of this section under financial and consumer services legislation and that if made after the commencement of this section would be made under that legislation by a regulator

(a) continues to be valid and of full force and effect, and

(b) shall be deemed to be a decision or agreement of the regulator.

Licences, permits and registrations

70 A licence, permit or registration issued or granted under financial and consumer services legislation before the commencement of this section that is valid and of full force and effect immediately before the commencement of this section, continues to be valid and of full force and effect until it expires or is suspended, cancelled, revoked or surrendered in accordance with financial and consumer services legislation.

Bond or other security

71( 1) A bond or other security provided under financial and consumer services legislation that immediately before the commencement of this section is valid and in full force and effect and payable to the Minister, the Crown in right of the Province or the Lieutenant-Governor in Council

(a) shall continue to be valid and of full force and effect and be deemed to be payable to the Commission, and

(b) may be forfeited or otherwise dealt with in accordance with financial and consumer services legislation.

71( 2) If a bond referred to in subsection (1) is secured by collateral security on deposit with the Minister, the collateral security shall be transferred to the Commission on the commencement of this section.

New Brunswick Securities Commission Securities Policy Advisory Committee

72( 1) The New Brunswick Securities Commission Securities Policy Advisory Committee is abolished.

72( 2) All appointments of members of the New Brunswick Securities Commission Securities Policy Advisory Committee are revoked.

72( 3) All contracts, agreements or orders relating to the allowance or expenses to be paid to members of the New Brunswick Securities Commission Securities Policy Advisory Committee are null and void.

72( 4) Despite the provisions of any contract, agreement or order, no allowance or expenses shall be paid to a member of the New Brunswick Securities Commission Securities Policy Advisory Committee.

72( 5) No action, application or other proceeding lies or shall be instituted against the Minister of Justice or the Crown in right of the Province as a result of the abolition of the New Brunswick Securities Commission Securities Policy Advisory Committee or the revocation of the appointments of its members.

Assessments - Insurance Act

73( 1) The Commission shall determine and certify the total amount of the costs and expenses incurred by the Province in relation to the administration of the Insurance Act for the period beginning on April 1, 2012, and ending on the commencement of this section, and the amount certified and determined by the Commission is final and conclusive for all purposes.

73( 2) The amount determined and certified under subsection (1) shall be assessed by the Commission against licensed insurers in the manner set out in subsection 94(5) of the Insurance Act, with the necessary modifications.

73( 3) An assessment made under subsection (2), including any related interest,

(a) is binding on each licensed insurer against which it is made and is final and conclusive,

(b) is payable on the demand of and to the Commission, and

73( 4) A certificate purporting to be signed by an employee or officer of the Commission setting out the amount of the assessment and any related interest is, without proof of the appointment, authority or signature of the person purporting to have signed the certificate, admissible in evidence and is, in the absence of evidence to the contrary, proof of the facts stated in the certificate.

73( 5) Subsections 94(3.1), (4) and (8) of the Insurance Act apply with the necessary modifications to an assessment made under subsection (2).

73( 6) Subsection 94(6.1) of the Insurance Act does not apply to an assessment made under subsection (2).

Assessments - Credit Unions Act

74( 1) The Commission shall determine the total amount of the costs and expenses of the Province in relation to the administration of the Credit Unions Act and the regulations under that Act for the period beginning on April 1, 2012, and ending on the commencement of this section, and the amount determined by the Commission is final and conclusive for all purposes.

74( 2) The amount determined under subsection (1) shall be assessed by the Commission against all credit unions in the manner set out in subsections 19.1(1) to (3) of the General Regulation under the Credit Unions Act, with the necessary modifications.

74( 3) An assessment made under subsection (2), including any related interest,

(a) is binding on each credit union against which it is made and is final and conclusive,

(b) is payable on the demand of and to the Commission, and

74( 4) Subsection 291(3) of the Credit Unions Act and subsections 19.1(5) to (7) of the General Regulation under the Credit Unions Act apply with the necessary modifications to an assessment made under subsection (2).

74( 5) A certificate purporting to be signed by an employee or officer of the Commission setting out the amount of the assessment and any related interest is, without proof of the appointment, authority or signature of the person purporting to have signed the certificate, admissible in evidence and is, in the absence of evidence to the contrary, proof of the facts stated in the certificate.

Ongoing hearings and reviews - New Brunswick Securities Commission

75( 1) After the commencement of this section, a hearing panel of the New Brunswick Securities Commission may deal with and complete a hearing or review that it began before the commencement of this section despite that the Tribunal would deal with and complete the hearing or review if it was begun after the commencement of this section.

75( 2) A hearing or review dealt with and completed by a hearing panel under subsection (1) shall be dealt with in accordance with the law as it existed immediately before the commencement of this section.

75( 3) If a hearing panel completes a hearing or review in accordance with subsection (1), the members of the hearing panel, including a former supplementary member of the New Brunswick Securities Commission referred to in subsection 79(1), shall be compensated in accordance with the law as it existed immediately before the commencement of this section.

75( 4) A decision, ruling, order, temporary order or direction made or action taken by a hearing panel in accordance with subsection (1) shall be deemed to be a decision, ruling, order, temporary order or direction or action of the Tribunal.

Ongoing appeals and reviews - Other legislation

76( 1) This section applies to financial and consumer services legislation, other than the Securities Act, that, immediately before the commencement of this section, provided for a process for the review or appeal of a decision of a regulator.

76( 2) If, immediately before the commencement of this section, a decision of a regulator was under review or appeal, the person or body responsible for the review or appeal shall deal with and complete the hearing or review after the commencement of this section despite that the Tribunal would deal with and complete the review or appeal if it was begun after the commencement of this section.

76( 3) Despite subsection (2), on the commencement of this section, the Minister of Justice may direct the Tribunal to deal with and complete a review or appeal referred to in that subsection.

76( 4) Subject to subsection (5), a review or appeal dealt with and completed under subsection (2) or (3) shall be dealt with in accordance with the law as it existed immediately before the commencement of this section.

76( 5) A review or appeal dealt with and completed under subsection (3) shall be conducted in accordance with the procedural rules applicable to a hearing held by the Tribunal.

76( 6) A decision, ruling, order, temporary order or direction made or action taken in accordance with subsection (2) shall be deemed to be a decision, ruling, order, temporary order or direction or action of the Tribunal.

Procedures for hearings

77 The rules made under subsection 200(1)(qqq.3) of the Securities Act, as those rules existed immediately before the commencement of this section, apply, with the necessary modifications, to a hearing held by the Tribunal until a rule is made under paragraph 59(3)(a).

Transfer of records to Tribunal

78 On the commencement of this section, all records of the New Brunswick Securities Commission related to hearings or reviews dealt with by hearing panels shall be transferred to the Registrar, if the hearing or review would be dealt with by the Tribunal if it was begun after the commencement of this section.

Former supplementary members

79( 1) Subject to subsection (2), a person holding office as a supplementary member of the New Brunswick Securities Commission immediately before the commencement of this section shall be deemed to be appointed under section 31 as a member of the Tribunal for a term that is equal to the unexpired portion of his or her term as a supplementary member and, despite subsections 31(2) and 31(3) and subsection (3) and subject to section 35, shall remain in office until he or she resigns or is reappointed or replaced in accordance with this Act.

79( 2) On the commencement of this section, a person holding office as a supplementary member of the New Brunswick Securities Commission immediately before the commencement of this section may be appointed chair of the Tribunal under section 31.

79( 3) For the purposes of subsections 31(2) and (3), time served as a supplementary member of the New Brunswick Securities Commission appointed under the Securities Act shall count as time served as a member of the Tribunal.

79( 4) Sections 50 and 51 apply with the necessary modifications to a former supplementary member of the New Brunswick Securities Commission.

Tribunal budget

80 The Financial and Consumer Services Commission shall ensure that the Tribunal is provided with sufficient funding for the proper operation of the Tribunal during the period beginning on July 1, 2013, and ending on the date the first budget of the Financial and Consumer Services Commission after the commencement of this section takes effect.

Closed competitions

81( 1) During the period beginning on July 1, 2013, and ending on June 30, 2015, despite the Civil Service Act, a person who was an employee of the Justice Division of the Department of Justice and Attorney General on June 30, 2013, and becomes an employee of the Commission on July 1, 2013, may be a candidate in a closed competition under the Civil Service Act as if that person were an employee within the meaning of that Act and, in relation to that competition, has the status of an employee under that Act for the purposes of sections 33, 33.1 and 33.2 of that Act.

81( 2) During the period beginning on July 1, 2013, and ending on June 30, 2015, despite the Civil Service Act, a person who was an employee of the Justice Division of the Department of Justice and Attorney General on June 30, 2013, and becomes an employee of the Commission on July 1, 2013, may be a candidate in a closed competition in relation to a position at Service New Brunswick as if that person were an employee within the meaning of the Civil Service Act and, in relation to that competition, has the status of an employee of Service New Brunswick for the purpose of subsection 29(2) of the Service New Brunswick Act.

Redeployment

82 Despite the Civil Service Act, if a person who was an employee of the Justice Division of the Department of Justice and Attorney General on June 30, 2013, and becomes an employee of the Commission on July 1, 2013, is laid off by the Commission during the period beginning on July 1, 2013, and ending on June 30, 2015, he or she is deemed to be an employee under the Civil Service Act for the purposes of subsections 26(3) and (4) of that Act and of paragraph 3(c) of the Exclusions Regulation - Civil Service Act.

Lateral transfers

83 Despite the Civil Service Act, a person who was an employee of the Justice Division of the Department of Justice and Attorney General on June 30, 2013, and becomes an employee of the Commission on July 1, 2013, is eligible, during the period beginning on July 1, 2013, and ending on June 30, 2015, to be appointed to a position in the Public Service through a lateral transfer as if the person were an employee within the meaning of the Civil Service Act.

No break in service

84 A person who ceases to be employed with the Justice Division of the Department of Justice and Attorney General on June 30, 2013, and who becomes an employee of the Commission on July 1, 2013, is deemed not to have ceased to be employed in the Public Service for the purposes of the Public Service Superannuation Act.

Commencement

85 This Act shall come into force on July 1, 2013.