BILL 55
An Act to Amend An Act Respecting Payday Loans
Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:
1 Section 1 of An Act Respecting Payday Loans, chapter 3 of the Acts of New Brunswick, 2008, is amended
(a) by repealing paragraph 1(3)(b) and substituting the following:
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(b) by adding the following definitions in alphabetical order: |
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“inspector” means an inspector appointed under section 52.1; (inspecteur) |
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“Internet payday loan” means an Internet payday loan as defined in section 37.1; (prêt sur salaire par Internet) |
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“payday loan” means a payday loan as defined in section 37.1; (prêt sur salaire) |
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“regulation” means a regulation made under this Act and, unless the context otherwise indicates, includes a rule as defined in section 37.1; (règlement) |
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(b) in subsection (8)
( i) in section 37.1 as enacted by subsection (8)
( A) by repealing the following definitions:
“Board”;
“Court of Appeal”;
( B) by repealing the definition “licence” and substituting the following:
“licence” means, unless the context otherwise requires, a licence issued under this Part that is not suspended or cancelled. (permis)
( C) by adding the following definitions in alphabetical order:
“Internet payday loan” means a payday loan under an agreement between a borrower and a credit grantor that is formed by Internet communications or by a combination of Internet and fax communications. (prêt sur salaire par Internet)
“rule” means a rule made under section 37.467, or if the context requires, a rule made under the Financial and Consumer Services Commission Act. (règle)
( ii) in section 37.11 as enacted by subsection (8)
( A) in subsection (2) in the portion preceding paragraph (a) by striking out “section 37.34 and section 54” and substituting “section 37.34, section 56.1 and any other provision of this Act”;
( B) in subsection (4) by striking out “may by regulation be exempted from the application of this Part or the regulations or any provision of this Part or the regulations” and substituting “may by regulation be exempted from the application of this Part or the regulations relating to this Part or any provision of this Part or the regulations relating to this Part”;
( iii) by repealing section 37.12 as enacted by subsection (8) and substituting the following:
Licence required to provide payday loans
37.12( 1) No person shall offer, arrange or provide a payday loan from a location except under the authority of a licence issued to the person or the person’s employer for that location.
37.12( 2) No person shall offer, arrange or provide an Internet payday loan from a website to a borrower in the Province except under the authority of a licence issued to that person or the person’s employer that specifies that the person or employer may offer, arrange or provide Internet payday loans from that website.
( iv) in section 37.13 as enacted by subsection (8)
( A) in subsection (1)
( I) by striking out the portion preceding paragraph (a) and substituting the following:
37.13( 1) A person may apply to the Director, on a form provided by the Director, for
( II) in paragraph (a) by striking out “payday loans at a location specified in the licence” and substituting “payday loans at a location specified on the licence or Internet payday loans from a website specified on the licence”;
( B) by adding after subsection (1) the following:
37.13( 1.1) An application for a licence must specify
(a) the location from which the applicant wishes to offer, arrange or provide payday loans, or
(b) the website from which the applicant wishes to offer, arrange or provide Internet payday loans.
( C) in subsection (3) by striking out “required by the regulations or the application form and any other information or documents that the Minister may require” and substituting “required by this section, the regulations, the application form and any other information or documents that the Director may require”;
( D) in subsection (4) by striking out “Minister” and substituting “Director”;
( v) in section 37.14 as enacted by subsection (8)
( A) in the portion preceding paragraph (a) by striking out “Minister” and substituting “Director”;
( B) in paragraph (a) of the English version by striking out “Minister” and substituting “Director”;
( vi) in section 37.15 as enacted by subsection (8)
( A) by repealing subsection (1) and substituting the following:
37.15( 1) Before a licence is issued by the Director, the applicant shall provide the Director with a bond or other form of security acceptable to the Director and payable to the Commission.
( B) in subsection (2) by striking out “Minister” and substituting “Director”;
( vii) in section 37.17 as enacted by subsection (8)
( A) in subsection (1) by striking out “Minister” and substituting “Director”;
( B) in subsection (2) by striking out “Minister” and substituting “Director”;
( viii) in section 37.18 as enacted by subsection (8)
( A) by striking out the portion preceding paragraph (a) and substituting the following:
37.18 In addition to any information or documents required under this Act or the regulations to be submitted, provided, produced, delivered or given to or filed with the Director by a licensee or an applicant, a licensee or an applicant shall, if requested to do so by the Director and within the period specified by the Director,
( B) by repealing paragraph (a) and substituting the following:
(a) provide to the Director any further information or documents that the Director may reasonably require for the purposes of ensuring compliance with this Part or the regulations relating to this Part, and
( C) by repealing paragraph (b) and substituting the following:
(b) verify, by affidavit or otherwise, any information or documents submitted, provided, produced, delivered or given to or filed with the Director under paragraph (a) or any other provision of this Act or the regulations.
( ix) in paragraph 37.19(2)(d) as enacted by subsection (8) by striking out “Minister’s” and substituting “Director’s”;
( x) in section 37.2 as enacted by subsection (8)
( A) in subsection (1)
( I) by striking out the portion preceding paragraph (a) and substituting the following:
37.2( 1) The Director may refuse to issue a licence to an applicant if
( II) in subparagraph (a)(ii) by striking out “Minister” and substituting “Director”;
( III) in paragraph (e) by striking out “regulations” and substituting “regulations relating to this Part”;
( IV) in paragraph (f) by striking out “Minister’s” and substituting “Director’s”
;
( V) in paragraph (g) by striking out “Minister’s” and substituting “Director’s”;
( B) in subsection (2) in the portion preceding paragraph (a) by striking out “Minister” and substituting “Director”;
( C) in subsection (3) by striking out “Minister” wherever it appears and substituting “Director”;
( xi) in section 37.21 as enacted by subsection (8)
( A) in subsection (1)
( I) in the portion preceding paragraph (a) by striking out “Minister” and substituting “Director”;
( II) in paragraph (a) of the English version by striking out “Minister” and substituting “Director”;
( III) in paragraph (b) by striking out “Minister” wherever it appears and substituting “Director”;
( B) in subsection (2)
( I) in the portion preceding paragraph (a) by striking out “Minister” and substituting “Director”;
( II) in paragraph (a) of the English version by striking out “Minister” wherever it appears and substituting “Director”;
( III) in paragraph (b) of the English version
1 . in subparagraph (i) by striking out “Minister” and substituting “Director”;
2 . in subparagraph (ii) by striking out “Minister” and substituting “Director”;
( C) in subsection (3) by striking out “Minister” and substituting “Director”;
( D) in subsection (4) by striking out “Minister” and substituting “Director”;
( E) in subsection (5) by striking out “Minister” and substituting “Director”;
( F) in subsection (6) by striking out “Minister” and substituting “Director”;
( G) in subsection (7) by striking out “Minister” and substituting “Director”;
( xii) in section 37.22 as enacted by subsection (8)
( A) in subsection (1) by striking out “Minister” wherever it appears and substituting “Director”;
( B) in subsection (2)
( I) in the portion preceding paragraph (a) by striking out “Minister” wherever it appears and substituting “Director”;
( II) in paragraph (b)
1 . in subparagraph (i) by striking out “Minister” and substituting “Director”;
2 . in subparagraph (ii) by striking out “Minister” and substituting “Director”;
( C) in subsection (5) by striking out “Minister” wherever it appears and substituting “Director”;
( D) in subsection (6) by striking out “Minister” and substituting “Director”;
( E) in subsection (7) by striking out “Minister and substituting “Director”;
( F) in subsection (8) by striking out “Minister” and substituting “Director”;
( G) in subsection (9) by striking out “Minister” and substituting “Director”;
( H) in subsection (10) of the English version by striking out “Minister’s” and substituting “Director’s”;
( xiii) in section 37.23 as enacted by subsection (8) by striking out “Minister” and substituting “Director”;
( xiv) in paragraph 37.24(b) as enacted by subsection (8) by striking out “Minister” and substituting “Director”;
( xv) in section 37.25 as enacted by subsection (8)
( A) by repealing subsection (1) and substituting the following:
37.25( 1) An appeal lies to the Tribunal from a decision of the Director not to issue or renew a licence, or to cancel or suspend a licence, other than an interim decision under subsection 37.22(1), if the appeal is made within 30 days after the date of the decision of the Director.
( B) by repealing subsection (2) and substituting the following:
37.25( 2) An appeal under this section does not stay the operation of the decision of the Director, unless the Tribunal orders otherwise, but the Director may himself or herself suspend the operation of the decision until the Tribunal has rendered its decision.
( C) in subsection (3) by striking out “Minister” and “Court of Appeal” and substituting “Director” and “Tribunal” respectively;
( D) in subsection (4) by striking out “Minister” and “Registrar of the Court of Appeal” and substituting “Director” and “Registrar” respectively;
( E) in subsection (5) by striking out “Minister” and “Court of Appeal” and substituting “Director” and “Tribunal” respectively;
( F) in subsection (6)
( I) in the portion preceding paragraph (a) by striking out “Court of Appeal” and substituting “Tribunal”;
( II) in paragraph (b) by striking out “Minister” wherever it appears and substituting “Director”;
( G) by repealing subsection (7);
( xvi) in the heading “Serving of notices by the Minister” preceding section 37.26 as enacted by subsection (8) by striking out “Minister” and substituting “Director”;
( xvii) in subsection 37.26(1) as enacted by subsection (8)
( A) in the portion preceding paragraph (a) by striking out “Minister” and substituting “Director”;
( B) in paragraph (b) by striking out “Minister’s” and substituting “Director’s”;
( xviii) by repealing the heading “Disclosure and publication of decisions” preceding section 37.27 as enacted by subsection (8);
( xix) by repealing section 37.27 as enacted by subsection (8);
( xx) in subsection 37.28(2) as enacted by subsection (8)
( A) by repealing paragraph (e) and substituting the following:
(e) the date of the making of the agreement;
( B) by adding after paragraph (e) the following:
(e.1) the date on which the first advance will be made to the borrower or to the order of the borrower, which date shall not be more than the number of days prescribed by regulation after the date of the making of the agreement;
(e.2) the date or dates on which any other advances will be made to the borrower or to the order of the borrower;
( C) in paragraph (h) by striking out “paragraph (e)” and substituting “paragraphs (e.1) and (e.2)”;
( D) in paragraph (m) by striking out “regulated by the Board under this Part” and substituting “regulated under this Part or the regulations relating to this Part”;
( xxi) in section 37.29 as enacted by subsection (8)
( A) in subsection (1) by striking out “of the payday lender at the location at which the payday loan was arranged or provided” and substituting “of a payday lender at a location at which a payday loan was arranged or provided”;
( B) in subsection (3)
( I) in paragraph (a) of the English version by striking out “or” at the end of the paragraph;
( II) in paragraph (b) by striking out the period at the end of the paragraph and substituting a comma followed by “or”;
( III) by adding after paragraph (b) the following:
(c) the payday lender did not hold a proper licence at the time the payday lender entered into the payday loan agreement with the borrower.
( xxii) in section 37.31 as enacted by subsection (8)
( A) in subsection (1) by striking out “maximum fixed by order of the Board” and substituting “maximum allowed by regulation”;
( B) in paragraph (2)(b) by striking out “Minister” and substituting “Director”;
( xxiii) in section 37.34 as enacted by subsection (8)
( A) in paragraph (2)(b) by striking out “Minister” and substituting “Director”;
( B) in paragraph (3)(b) by striking out “Minister” and substituting “Director”;
( xxiv) in section 37.36 as enacted by subsection (8) by striking out “fixed by order of the Board” and substituting “allowed by regulation”;
( xxv) in section 37.37 as enacted by subsection (8)
( A) in subsection (1) by striking out “except as permitted under an order of the Board” and substituting “except as allowed by regulation”;
( B) in paragraph (2)(b) by striking out “Minister” and substituting “Director”;
( xxvi) by adding after section 37.38 as enacted by subsection (8) the following:
Extension of other forms of credit
37.381 No payday lender shall extend credit to any person other than by means of a payday loan.
( xxvii) by adding after section 37.39 as enacted by subsection (8) the following:
Provision of information
37.391 A payday lender shall provide to the Director the information or documents prescribed by regulation at the times and in the form and manner prescribed by regulation.
Late fees
37.392 A payday lender that provides a document or information to the Director after the time required by the regulations referred to in section 37.391 shall pay the late fee prescribed by regulation.
( xxviii) by repealing the heading “Documents à conserver” preceding the French version of section 37.41 as enacted by subsection (8) and substituting the following:
Tenue des registres
( xxix) by repealing section 37.41 as enacted by subsection (8) and substituting the following:
37.41 A payday lender shall, in accordance with the regulations, maintain adequate records of its business operations, including, without being limited to, records of all payday loans that it offers, arranges or provides, all payday loan agreements that the payday lender enters into and any other records prescribed by regulation.
( xxx) by repealing the heading “False, misleading or inaccurate statement” preceding section 37.42 as enacted by subsection (8);
( xxxi) by repealing section 37.42 as enacted by subsection (8);
( xxxii) in section 37.43 as enacted by subsection (8)
( A) in paragraph (a) by striking out “this Part or the regulations” and substituting “this Part or the regulations relating to this Part”;
( B) in paragraph (b) by striking out “this Part or the regulations” and substituting “this Part or the regulations relating to this Part”;
( xxxiii) in subsection 37.44(3) as enacted by subsection (8) by striking out “Minister” and substituting “Director”;
( xxxiv) in section 37.45 as enacted by subsection (8)
( A) in subsection (2) by striking out “except as permitted under an order of the Board” and substituting “except as allowed by regulation”;
( B) in paragraph (3)(b) by striking out “Minister” and substituting “Director”;
( xxxv) by adding after section 37.45 as enacted by subsection (8) the following:
Division D.1
Investigations
Provision of information to Director
37.451( 1) The Director may make an order under subsection (2)
(a) for the administration of this Part or the regulations relating to this Part, or
(b) to assist in the administration of legislation similar to this Part or the regulations relating to this Part in another jurisdiction.
37.451( 2) By an order applicable generally or to one or more persons named or otherwise described in the order, the Director may require any of the following persons to provide information or to produce books, records or documents or classes of books, records or documents specified or otherwise described in the order within the time or at the intervals specified in the order:
(a) a licensee or a former licensee; or
(b) any person that is not a licensee or an employee of a licensee and that is, or the Director suspects, on reasonable grounds is, offering, arranging or providing payday loans.
37.451( 3) The Director may require that the information that is provided or that the books, records or documents or classes of books, records or documents produced pursuant to an order made under subsection (2) be delivered in electronic form, if the information or the books, records or documents or classes of books, records or documents are already available in that form.
Investigation order
37.452( 1) The Commission may, by order, appoint a person as an investigator to make any investigation that the Commission considers expedient
(a) for the administration of this Part or the regulations relating to this Part, or
(b) to assist in the administration of legislation similar to this Part or the regulations relating to this Part in another jurisdiction.
37.452( 2) In its order, the Commission shall specify the scope of an investigation to be carried out under subsection (1).
Powers of investigator
37.453( 1) An investigator may, with respect to the person who is the subject of the investigation, investigate, inspect and examine
(a) the affairs of that person,
(b) any books, records, documents or communications connected with that person, and
(c) any property or assets owned, acquired or disposed of, in whole or in part, by that person or by a person acting on behalf of or as agent for that person.
37.453( 2) For the purposes of an investigation under this Division, an investigator may inspect and examine any book, record, document or thing, whether in possession or control of the person in respect of which the investigation is ordered or any other person.
37.453( 3) An investigator making an investigation under this Division may, on production of the order appointing him or her,
(a) enter the business premises of any person named in the order during normal business hours and inspect and examine any book, record, document or thing that is used in the business of that person and that relates to the order,
(b) require the production of any book, record, document or thing referred to in paragraph (a) for inspection or examination, and
(c) on giving a receipt, remove the book, record, document or thing inspected or examined under paragraph (a) or (b) for the purpose of further inspection or examination.
37.453( 4) Inspection or examination under this section shall be completed as soon as possible and the books, records, documents or things shall be returned promptly to the person who produced them.
37.453( 5) No person shall withhold, destroy, conceal, alter or refuse to give any information or withhold, destroy, conceal, alter or refuse to produce any book, record, document or thing reasonably required under subsection (3) by an investigator.
Power to compel evidence
37.454( 1) An investigator making an investigation under this Division has the same power to summon and enforce the attendance of witnesses, to compel witnesses to give evidence under oath or in any other manner and to compel witnesses to produce books, records, documents and things or classes of books, records, documents and things as the Court has for the trial of civil actions.
37.454( 2) On the application of an investigator to the Court, the failure or refusal of a person to attend, to take an oath, to answer questions or to produce books, records, documents and things or classes of books, records, documents and things in the custody, possession or control of the person makes the person liable to be committed for contempt as if in breach of an order or judgment of the Court.
37.454( 3) A person giving evidence at an investigation conducted under this section may be represented by legal counsel.
37.454( 4) Testimony given by a person under this section shall not be admitted into evidence against that person in any prosecution other than for perjury in the giving of that testimony or the giving of evidence contradictory to that testimony.
Investigators authorized as peace officers
37.455 Every investigator in carrying out his or her duties under this Act and the regulations is a person employed for the preservation and maintenance of the public peace and has and may exercise all the powers, authorities and immunities of a peace officer as defined in the Criminal Code (Canada).
Seized property
37.456( 1) On request to the investigator by the person who, at the time of the seizure, was in lawful possession of books, records, documents or things seized under this Division, the books, records, documents or things seized shall, at a time and place mutually convenient to the person who was in lawful possession of them at the time of the seizure and the investigator, be made available for consultation and copying by the person.
37.456( 2) If books, records, documents or things are seized under this Division and the matter for which the books, records, documents or things were seized is concluded, the investigator shall return those books, records, documents or things to the person who was in lawful possession of them at the time of the seizure within 60 days after the day that the matter is concluded.
37.456( 3) If books, records, documents or things are seized under this Division and the person who was in lawful possession of the books, records, documents or things at the time of the seizure alleges that the books, records, documents or things are not relevant in respect of the matter for which they were seized, that person may apply by notice of motion to the Court for the return of the books, records, documents or things.
37.456( 4) On a motion under subsection (3), the Court shall order the return of any books, records, documents or things that it determines are not relevant to the matter for which they were seized to the person who was in lawful possession of the books, records, documents or things at the time of the seizure.
Report of investigation
37.457( 1) If an investigation has been made under this Division, the investigator shall, at the request of the Commission, provide a report of the investigation to the Commission or any transcripts of evidence or any material or other things in the investigator’s possession relating to the investigation.
37.457( 2) A report that is provided to the Commission under this section is privileged and is inadmissible in evidence in any action or proceeding.
Prohibition against disclosure
37.458( 1) For the purpose of protecting the integrity of an investigation under this Division, the Commission may make an order that applies for the duration of the investigation, prohibiting a person from disclosing to any person other than the person’s lawyer the following information:
(a) the fact that an investigation is being conducted;
(b) the name of any person examined or sought to be examined;
(c) the nature or content of any questions asked;
(d) the nature or content of any demands for the production of any document or other thing; or
(e) the fact that any document or other thing was produced.
37.458( 2) An order under subsection (1) does not apply to disclosures authorized by the regulations or by the Director in writing.
37.458( 3) An investigator making an investigation under this Division may make, or authorize the making of, any disclosure of information that may be required for the effectual conduct of the investigation.
Non-compellability
37.459 None of the following persons are compellable to give evidence in any court or in any proceeding of a judicial nature concerning any information that comes to the knowledge of the person in the exercise of the powers or performance of the duties of that person in relation to an investigation under this Division:
(a) an investigator;
(b) the Commission;
(c) a member of the Commission;
(d) an employee of the Commission; and
(e) a person engaged by the Commission under section 18 of the Financial and Consumer Services Commission Act.
( xxxvi) by repealing the heading “Guidelines” preceding section 37.46 as enacted by subsection (8) and substituting the following:
Guidelines and Recommendations
( xxxvii) in subsection 37.46(1) as enacted by subsection (8) by striking out “Minister” and substituting “Commission”;
( xxxviii) by adding after section 37.46 as enacted by subsection (8) the following:
Recommendations to the Lieutenant-Governor in Council
37.461 The Commission may make recommendations to the Lieutenant-Governor in Council regarding desirable changes in, or additions to, the regulations made under paragraph 62(1)(aa.251), (aa.252), (aa.253) or (aa.6).
Recommendations to Minister
37.462 The Commission may make recommendations to the Minister on matters in respect of payday loans and payday lenders.
Division E.1
Proceedings Against Payday Lenders
Orders in the public interest
37.463( 1) On the application of the Commission, the Tribunal, if in its opinion it is in the public interest to do so, may make one or more of the following orders:
(a) an order that a licence be suspended or restricted for the period specified in the order or be cancelled, or that terms and conditions be imposed on the licence;
(b) an order that any exemptions contained in the regulations relating to this Part do not apply to a person permanently or for any period specified in the order;
(c) an order that a person cease conducting all or any activities related to payday lending or those specified in the order;
(d) an order that a person submit to a review of the person’s practices and procedures relating to payday lending and institute any changes directed by the Tribunal;
(e) if the Tribunal is satisfied that this Part or the regulations relating to this Part have not been complied with, an order that any document or statement described in the order
( i) be provided by a person,
( ii) not be provided to a person, or
( iii) be amended to the extent that amendment is practicable;
(f) an order that a person be reprimanded;
(g) an order that a person amend, in the manner specified in the order, any information or material of any kind described in the order that is disseminated to the public;
(h) an order that a person cease contravening or comply with, and that the directors and officers of the person cause the person to cease contravening or to comply with, this Part and the regulations relating to this Part;
(i) if a person has not complied with this Part or the regulations relating to this Part, an order requiring the person to disgorge to the Commission any amounts obtained as a result of the non-compliance.
37.463( 2) The Tribunal may impose any terms and conditions that the Tribunal considers appropriate on an order under this section.
37.463( 3) A person who is the subject of an order made under this section shall comply with any terms and conditions imposed on the order.
37.463( 4) Unless the parties and the Tribunal consent, no order shall be made under this section without a hearing.
37.463( 5) Despite subsection (4), if in the opinion of the Tribunal the length of time required to hold a hearing could be prejudicial to the public interest, the Tribunal, without a hearing, may make a temporary order under paragraph (1)(a), (b), (c) or (f).
37.463( 6) The temporary order shall take effect immediately and shall expire on the fifteenth day after its making unless extended by the Tribunal.
37.463( 7) The Tribunal may extend a temporary order until the hearing is concluded if a hearing is commenced within the 15-day period.
37.463( 8) The Commission shall without delay give written notice of an order or temporary order made under this section to any person directly affected by the order or temporary order.
Administrative penalty
37.464( 1) On the application of the Commission and after conducting a hearing, the Tribunal may order a person to pay an administrative penalty of, in the case of an individual, not more than $25,000, and in the case of a person other than an individual, not more than $100,000, if the Tribunal
(a) determines that the person has contravened or failed to comply with this Part or the regulations relating to this Part, and
(b) is of the opinion that it is in the public interest to make the order.
37.464( 2) The Tribunal may make an order under this section despite the imposition of any other penalty on the person or the making of any other order by the Tribunal, the Commission or the Director related to the same matter.
Resolution of administrative proceedings
37.465( 1) Despite any other provision of this Act or the regulations, an administrative proceeding conducted by the Commission, the Tribunal or the Director under this Part or the regulations relating to this Part may be disposed of by
(a) an agreement approved by the Commission, the Tribunal or the Director, as the case may be,
(b) a written undertaking made by a person to the Commission, the Tribunal or the Director that has been accepted by the Commission, the Tribunal or Director, as the case may be, or
(c) if the parties have waived the hearing or compliance with any requirement of this Act or the regulations, a decision of the Commission, the Tribunal or the Director, as the case may be, made without a hearing or without compliance with the requirement of this Act or the regulations.
37.465( 2) An agreement, written undertaking or decision made, accepted or approved under subsection (1) may be enforced in the same manner as a decision made by the Commission, the Tribunal or the Director under any other provision of this Act or under the regulations.
Limitation period
37.466 No civil or administrative proceeding under this Part or the regulations relating to this Part shall be commenced more than six years after the date of the occurrence of the last event on which the proceeding is based.
Division E.2
Rule-making
Rules
37.467( 1) The Commission may make a rule in respect of any matter in respect of which the Lieutenant-Governor in Council has authority to make a regulation under paragraphs 62(1)(aa.1) to (aa.25), (aa.26) to (aa.5) and (aa.7), and subsections 62(2) and (3) apply, with the necessary modifications, as though the rule were a regulation.
37.467( 2) The Lieutenant-Governor in Council may make regulations
(a) establishing the practices and procedures that are to be followed by the Commission in making or amending rules;
(b) providing for the form and content of a notice of a rule to be published in The Royal Gazette under paragraph 37.468(1)(b);
(c) governing the commencement of rules made by the Commission and establishing the period during which rules made by the Commission are effective.
37.467( 3) The Lieutenant-Governor in Council may, by order, amend or repeal a rule made by the Commission.
37.467( 4) 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 this Act or by the Commission under this subsection that in the opinion of the Commission is necessary or advisable to effectively implement the rule.
37.467( 5) A regulation made under subsection (4) is not effective before the rule referred to in that subsection comes into force.
37.467( 6) Subject to subsection (5), a regulation made under subsection (4) may be retroactive in its operation.
37.467( 7) The Regulations Act does not apply to the rules.
37.467( 8) If there is a conflict or an inconsistency between a regulation made by the Lieutenant-Governor in Council under this Act and a rule made under this Act, the regulation prevails but in all other respects a rule has the same force and effect as a regulation.
Notice and publication of rules
37.468( 1) As soon as practicable after a rule is made under section 37.467, the Commission shall
(a) publish the rule electronically, and
(b) publish in The Royal Gazette notice of the rule in accordance with the regulations.
37.468( 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.
37.468( 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
37.469 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 37.468(1)(a).
Consolidated rules
37.4691( 1) The Secretary of the Commission may maintain a consolidation of the rules made by the Commission.
37.4691( 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.
37.4691( 3) The Commission may publish the consolidated rules in the frequency that it considers appropriate.
37.4691( 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.
37.4691( 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.
( xxxix) by repealing Division F of Part V.1 as enacted by subsection (8);
(c) in subsection (9) in section 52.1 as enacted by subsection (9) by striking out “Minister” and substituting “Commission”;
(d) in subsection (10)
( i) by repealing paragraph (h) and substituting the following:
(h) in subsection (7) by striking out “the Director” and substituting “an inspector”;
( ii) by repealing paragraph (i) and substituting the following:
(i) in subsection (8) by striking out “the Director removes any book, record, account or document under subsection (7), the Director” and substituting “an inspector removes any book, record, account or document under subsection (7), the inspector”;
(e) by adding after subsection (10) the following:
1( 10.1) The Act is amended by adding before section 54 the following:
Division A
Cost of Credit Disclosure Offences and Inspection Offences
1( 10.2) Subsection 54(1) of the Act is amended by striking out “A person who” and substituting “Subject to paragraph 56.1(1)(g), a person who”.
1( 10.3) Section 55 of the Act is repealed and the following is substituted:
Limitation period
55 Subject to section 56.2, a prosecution of an offence under this Act or the regulations shall be commenced within three years after the date on which the offence was, or is alleged to have been, committed.
1( 10.4) The Act is amended by adding after section 56 the following:
Division B
Payday Lending Offences
Offences
56.1( 1) A person who does any of the following commits an offence, and is liable on conviction, for each offence, if an individual, to a fine of not more than $50,000 or to imprisonment for a term of not more than one year, or to both, and if a person other than an individual, to a fine of not more than $250,000:
(a) makes a statement in any information or material submitted, provided, produced, delivered or given under Part V.1 or the regulations relating to that Part to any of the following persons, or filed under that Part or the regulations relating to that Part with any of those persons, that is misleading or untrue or does not state a fact that is required to be stated or that is necessary to make the statement not misleading:
( i) the Commission;
( ii) the Director;
( iii) an investigator; or
( iv) any person acting under the authority of the Commission or the Director.
(b) makes a statement in any information or material required to be submitted, provided, produced, delivered, given or filed under Part V.1 or the regulations relating to that Part that is misleading or untrue or does not state a fact that is required to be stated or that is necessary to make the statement not misleading;
(c) withholds, destroys, conceals, alters or refuses to produce any information or thing reasonably required for the purposes of an administrative proceeding under Part V.1 or the regulations relating to that Part;
(d) contravenes or fails to comply with a provision of Part V.1 that is listed in Schedule B;
(e) contravenes or fails to comply with a decision, ruling, order, temporary order or direction of the Commission, the Director or the Tribunal made or given under Part V.1 or the regulations relating to that Part;
(f) contravenes or fails to comply with a written undertaking made by that person to the Commission, the Director or the Tribunal under Part V.1 or the regulations relating to that Part; or
(g) contravenes or fails to comply with any provision of the regulations made under paragraphs 62(1)(aa.1) to (aa.7).
56.1( 2) Without limiting the availability of other defences, no person commits an offence under paragraph (1)(a) or (b) if
(a) the person did not know and in the exercise of reasonable diligence could not have known that the statement was misleading or untrue or that it omitted to state a fact that was required to be stated or that was necessary to make the statement not misleading in light of the circumstances in which it was made, and
(b) on becoming aware that the statement was misleading or untrue or that it omitted to state a fact that was required to be stated or that was necessary to make the statement not misleading, the person notified the Commission.
Limitation period
56.2 A prosecution of an offence referred to in section 56.1 shall be commenced within six years after the date on which the offence was, or is alleged to have been, committed.
1( 10.5) The Act is amended by adding before section 57 the following:
Division C
Certificate Evidence
(f) by repealing paragraph (11)(c) and substituting the following:
(c) by repealing paragraph (c) and substituting the following:
(c) that a credit grantor, lessor or credit broker has submitted, provided, produced, delivered, given or filed or has failed to submit, provide, produce, deliver, give or file any information or document required to be submitted, provided, produced, delivered or given to or filed with the Commission or the Director under this Act or the regulations.
(g) in subsection (12) in subsection 59(2) as enacted by subsection (12) by striking out “Minister” and “to provide a bond or collateral security in accordance with the regulations” and substituting “Director” and “to provide, in accordance with the regulations, a bond or collateral security payable to the Commission” respectively;
(h) by adding after subsection (12) the following:
1( 12.1) The Act is amended by adding after section 61 the following:
Conflict with the Right to Information and Protection of Privacy Act
61.1 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.
(i) in subsection (13)
( i) in paragraph (b)
( A) in paragraph (aa.14) as enacted by paragraph (b) by striking out “or the regulations or any provision of that Part or the regulations” and substituting “or the regulations relating to that Part or any provision of that Part or the regulations relating to that Part”;
( B) in subparagraph (aa.15)(iii) as enacted by paragraph (b) by striking out “Minister” and substituting “Director”;
( C) by adding after paragraph (aa.15) as enacted by paragraph (b) the following:
(aa.151) respecting Internet payday loans;
( D) in subparagraph (aa.16)(iii) as enacted by paragraph (b) by striking out “Minister” and substituting “Director or Commission”;
( E) by repealing paragraph (aa.17) as enacted by paragraph (b);
( F) by adding after paragraph (aa.19) as enacted by paragraph (b) the following:
(aa.191) prescribing a number of days for the purposes of paragraph 37.28(2)(e.1);
( G) by adding after paragraph (aa.25) as enacted by paragraph (b) the following:
(aa.251) for the purposes of subsection 37.31(1),
( i) fixing the maximum total cost of credit - or establishing a rate, formula or tariff for determining the maximum total cost of credit - that may be charged, required or accepted in respect of a payday loan,
( ii) fixing the maximum amount - or establishing a rate, formula or tariff for determining the maximum amount - that may be charged, required or accepted in respect of any component of the total cost of credit of a payday loan;
(aa.252) for the purposes of section 37.36, fixing a maximum percentage - or establishing a rate, formula or tariff for determining a maximum percentage - of the net pay or other net income of the borrower that must not be exceeded by the amount of credit to be extended under a payday loan agreement;
(aa.253) for the purposes of subsection 37.37(1), fixing the maximum penalty or other amount - or establishing a rate, formula or tariff for determining the maximum penalty or other amount - that may be charged, required or accepted in relation to a default by the borrower under a payday loan;
( H) by adding after paragraph (aa.26) as enacted by paragraph (b) the following:
(aa.261) for the purposes of section 37.391, prescribing information and documents that payday lenders are required to provide to the Director and the times at which and the form and manner in which the information and documents are to be provided;
(aa.262) prescribing late fees for the purposes of section 37.392;
( I) by repealing paragraph (aa.28) as enacted by paragraph (b) and substituting the following:
(aa.28) for the purposes of section 37.41,
( i) prescribing additional records to be maintained by payday lenders, and
( ii) the length of time for which and the location at which payday lenders’ records must be retained;
( J) by repealing paragraph (aa.29) as enacted by paragraph (b);
( K) by adding after paragraph (aa.5) as enacted by paragraph (b) the following:
(aa.6) for the purposes of subsection 37.45(2), fixing the maximum amount - or establishing a rate, formula or tariff for determining the maximum amount - that may be charged, required or accepted as a cheque cashing fee;
(aa.7) authorizing disclosures for the purposes of subsection 37.458(2);
( ii) by repealing paragraph (c) and substituting the following:
(c) by adding after subsection (1) the following:
62 ( 2) A regulation may be general or particular in its application and may vary for or be made in respect of different credit grantors, lessors or credit brokers or different classes of credit grantors, lessors or credit brokers.
62 ( 3) Without limiting paragraph (1)(aa.151), a regulation made under that paragraph may extend, modify or limit the application of any provision of Part V.1 in relation to an Internet payday loan.
(j) by repealing subsection (14) and substituting the following:
1 ( 14) Schedule A of the Act is amended by striking out
and substituting the following:
| | 53(6) ............... | D | |
| | 53(10) ............... | D | |
| | 53(11) ............... | E | |
| | 53(12) ............... | E | |
(k) by adding after subsection (14) the following:
1 ( 15) The Act is amended by adding after Schedule A the attached Schedule B.
2 The Act is amended by adding after section 3 the following:
Financial and Consumer Services Commission Act
3.1 Section 1 of the Financial and Consumer Services Act is amended in paragraph (g) of the definition “financial and consumer services legislation” by striking out “Cost of Credit Disclosure Act” and substituting “Cost of Credit Disclosure and Payday Loans Act”.
3 Section 4 of the Act is repealed.
SCHEDULE B
Number of provision
37.12(1) |
37.12(2) |
37.17(3) |
37.18(a) |
37.18(b) |
37.28(1) |
37.28(2) |
37.28(3) |
37.28(5) |
37.28(6) |
37.29(6)(a) |
37.29(8) |
37.3(1) |
37.31(1) |
37.32(a) |
37.32(b) |
37.32(c) |
37.33 |
37.34(1) |
37.35 |
37.36 |
37.37(1) |
37.38(3) |
37.381 |
37.39 |
37.391 |
37.4 |
37.41 |
37.44(4) |
37.44(5) |
37.45(2) |
37.453(5) |
37.463(3) |