Bill 45 - An Act Respecting the Enforcement of Financial and Consumer Services Legislation

BILL 45

An Act Respecting the Enforcement of Financial and Consumer Services Legislation

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

Collection Agencies Act

1( 1) The Collection Agencies Act, chapter 126 of the Revised Statutes, 2011, is amended by adding before section 1 the following:

PART 1

DEFINITIONS AND APPLICATION

1( 2) Section 1 of the Act is amended by adding the following definitions in alphabetical order:

“compliance officer” means a person appointed as a compliance officer under section 9.12. (agent de conformité)

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

“investigator” means a person appointed as an investigator under section 9.31. (enquêteur)

“regulated activity” means any activity governed by this Act or the regulations. (activité réglementée)

1( 3) The Act is amended by adding after section 2 the following:

PART 2

LICENCES

1( 4) Subsection 3(2) of the Act is repealed.

1( 5) Section 4 of the Act is amended

(a) by repealing paragraph (2)(b) and substituting the following:

(b) at any time restrict a licence by imposing any terms and conditions that he or she considers appropriate on the licence,

(b) by adding after subsection (2) the following:

4( 3) The holder of a licence shall comply with the terms and conditions imposed on the licence by the Director and to any terms and conditions for the licence established by the regulations.

4( 4) The Director shall not refuse to issue a licence or impose terms and conditions on the licence without giving the applicant or holder of the licence an opportunity to be heard.

1( 6) The heading “Offence regarding lack of licence” preceding section 5 of the Act is repealed and the following is substituted:

Prohibition regarding lack of licence

1( 7) Section 5 of the Act is repealed and the following is substituted:

5 No collection agency or collector shall carry on business in the Province, either by correspondence or by serving written demands or making verbal demands on alleged debtors, without the licence required by this Act.

1( 8) The heading “Offence regarding use of unlicensed agency” preceding section 6 of the Act is repealed and the following is substituted:

Prohibition regarding use of unlicensed agency

1( 9) Section 6 of the Act is repealed and the following is substituted:

6 No person shall employ a collection agency that does not have the licence required by this Act, or cause letters to be sent to or oral demands to be made on debtors or alleged debtors by a collection agency not having that licence.

1( 10) The heading “Offence regarding violation of regulations” preceding section 7 of the Act is repealed.

1( 11) Section 7 of the Act is repealed.

1( 12) The heading “Examination of books and records” preceding section 8 of the Act is repealed.

1( 13) Section 8 of the Act is repealed.

1( 14) Section 9 of the Act is amended

(a) in subsection (3) by striking out “this section, section 4 or subsection 8(2)” and substituting “this section or section 4”;

(b) by adding after subsection (4) the following:

9( 4.1) If money is held in trust by a person whose licence is suspended or cancelled under this Act, the Director may order a financial institution holding the money to refrain from paying out all or any part of the money for the period of the suspension or cancellation.

9( 4.2) The Director shall not cancel or suspend a licence under this Act without providing the holder of the licence an opportunity to be heard.

1( 15) The Act is amended by adding after section 9 the following:

PART 3

RECORD-KEEPING, ADVERTISING AND COMPLIANCE REVIEWS

Record-keeping

9.1( 1) The following definition applies in this section.

“regulatory authority” means a person empowered by the laws of a jurisdiction to regulate the activities of a collection agency or of a person operating a branch office of a collection agency. (organisme de réglementation)

9.1( 2) A collection agency or person operating a branch office of a collection agency shall keep books, records and documents that are necessary for the proper recording of its business and affairs and shall keep any other books, records and documents that are otherwise required under this Act or the regulations.

9.1( 3) A collection agency or person operating a branch office of a collection agency shall keep the books, records and documents at a safe location and in a durable form.

9.1( 4) A collection agency or person operating a branch office of a collection agency shall retain the books, records and documents for a minimum period of seven years after the date of the transaction to which the books, records or documents relate.

9.1( 5) A collection agency or person operating a branch office of a collection agency shall deliver to the Director, or to any other employee of the Commission, at any time that the Director or other employee requires

(a) any of the books, records and documents that are required to be kept by the collection agency or person operating a branch office of a collection agency under this Act or the regulations, and

(b) any filings, reports or other communications made to any other regulatory authority.

False or misleading advertisement

9.11( 1) No holder of a licence issued under this Act shall make any false, misleading or deceptive statements in any advertisement, circular, pamphlet or similar material prepared or used in respect of a regulated activity.

9.11( 2) If, in the opinion of the Director, a holder of a licence issued under this Act has made a false, misleading or deceptive statement in any advertisement, circular, pamphlet or similar material referred to in subsection (1), the Director may order the holder of the licence to stop using that material immediately.

Compliance review

9.12( 1) The Commission may appoint in writing a person as a compliance officer for the purpose of ensuring compliance with this Act and the regulations.

9.12( 2) The Commission shall issue to every compliance officer a certificate of appointment and every compliance officer, in the execution of his or her duties under this Act or the regulations, shall produce his or her certificate of appointment on request.

9.12( 3) For the purpose of determining whether this Act and the regulations are being complied with, a compliance officer, in carrying out a compliance review, may

(a) enter the premises of any collection agency or a person operating a branch office of a collection agency during normal business hours,

(b) require a collection agency or a person operating a branch office of a collection agency or an officer or employee of either of them to produce for inspection, examination, auditing or copying any books, records or documents relating to the business or affairs of the collection agency or person operating a branch office of a collection agency,

(c) inspect, examine, audit or copy the books, records or documents relating to the business or affairs of a collection agency or person operating a branch office of a collection agency, and

(d) question a collection agency or a person operating a branch office of a collection agency or an officer or employee of either of them in relation to the business or affairs of the collection agency or person operating a branch office of a collection agency.

9.12( 4) In carrying out a compliance review, a compliance officer may

(a) use a data processing system at the premises where the books, records or documents are kept,

(b) reproduce any book, record or document, and

(c) use any copying equipment at the premises where the books, records or documents are kept to make copies of any book, record or document.

9.12( 5) A compliance officer may carry out a compliance review within or outside the Province.

9.12( 6) A compliance officer shall not enter a private dwelling under subsection (3) unless the compliance officer has the consent of the occupier or has obtained an entry warrant under the Entry Warrants Act.

9.12( 7) Before or after attempting to enter or to have access to any premises, a compliance officer may apply for an entry warrant under the Entry Warrants Act.

9.12( 8) The Commission may, in prescribed circumstances, require a collection agency or a person operating a branch office of a collection agency in respect of which a compliance review was carried out to pay the Commission any prescribed fee and to reimburse the Commission for any prescribed expenses.

Removal of documents

9.2( 1) A compliance officer who removes books, records or documents to make a copy or extract of them or any part of them shall give a receipt to the occupier of the premises for the books, records or documents removed and return the books, records or documents as soon as possible after the making of copies or extracts.

9.2( 2) A copy or extract of any book, record or document related to a compliance review and purporting to be certified by a compliance officer is admissible in evidence in any action, proceeding or prosecution and is proof, in the absence of evidence to the contrary, of the original without proof of the appointment, authority or signature of the person purporting to have certified the copy or extract.

Misleading statements

9.21 No person shall knowingly make a false or misleading statement, either orally or in writing, to a compliance officer while the compliance officer is engaged in carrying out his or her duties under this Act or the regulations.

Obstruction

9.22( 1) No person shall obstruct or interfere with a compliance officer who is carrying out or attempting to carry out a compliance review under this Part, or withhold, destroy, conceal, alter or refuse to produce any information or thing reasonably required by a compliance officer for the purposes of the compliance review.

9.22( 2) A refusal of consent to enter a private dwelling is not and shall not be considered to be interfering with or obstructing within the meaning of subsection (1), except if an entry warrant has been obtained.

PART 4

INVESTIGATIONS

Provision of information to Director

9.3( 1) The Director may make an order under subsection (2)

(a) for the administration of this Act or the regulations, or

(b) to assist in the administration of similar legislation of another jurisdiction.

9.3( 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) the holder of a licence issued under this Act;

(b) a former holder of a licence issued under this Act; or

(c) any person that does not hold a licence under this Act and that is, or the Director has reason to suspect is, carrying out a regulated activity.

9.3( 3) The Director may require that the authenticity, accuracy or completeness of information provided or of a book, record or document or a class of books, records or documents produced pursuant to an order under subsection (2) be verified by affidavit.

9.3( 4) The Director may require that the information 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

9.31( 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 Act or the regulations, or

(b) to assist in the administration of similar legislation of another jurisdiction.

9.31( 2) In its order, the Commission shall specify the scope of an investigation to be carried out under subsection (1).

Powers of investigator

9.32( 1) An investigator may, with respect to the person who is the subject of the investigation, investigate, inspect and examine

(a) the business or 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.

9.32( 2) For the purposes of an investigation under this Part, an investigator may inspect and examine any book, record, document or thing, whether in possession or control of the person in respect of whom the investigation is ordered or any other person.

9.32( 3) An investigator making an investigation under this Part 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.

9.32( 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.

9.32( 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

9.4( 1) An investigator making an investigation under this Part 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 of Queen’s Bench has for the trial of civil actions.

9.4( 2) On the application of an investigator to the Court of Queen’s Bench, 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 of Queen’s Bench.

9.4( 3) A person giving evidence at an investigation conducted under this section may be represented by legal counsel.

9.4( 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

9.41 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

9.42( 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 Part, 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.

9.42( 2) If books, records, documents or things are seized under this Part 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.

9.42( 3) If books, records, documents or things are seized under this Part 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 of Queen’s Bench for the return of the books, records, documents or things.

9.42( 4) On a motion under subsection (3), the Court of Queen’s Bench 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

9.5( 1) If an investigation has been made under this Part, 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.

9.5( 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

9.51( 1) For the purpose of protecting the integrity of an investigation under this Part, 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;

(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.

9.51( 2) An order under subsection (1) does not apply to disclosures authorized by the regulations or by the Director in writing.

9.51( 3) An investigator making an investigation under this Part may make, or authorize the making of, any disclosure of information that may be required for the effectual conduct of the investigation.

Non-compellability

9.52 None of the following persons is 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 Part:

(a) an investigator;

(b) the Commission;

(d) an employee of the Commission;

(e) a member of the Tribunal; and

(f) a person engaged by the Commission under section 18 of the Financial and Consumer Services Commission Act.

PART 5

ENFORCEMENT

Offences generally

9.6( 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 to or filed with the Commission, the Director, a compliance officer, an investigator or any person acting under the authority of the Commission or the Director 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;

(b) makes a statement in any information or material required to be submitted, provided, produced, delivered, given or filed under this Act or the regulations 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 this Act or the regulations;

(d) violates or fails to comply with a provision of this Act that is listed in Schedule A;

(e) violates 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 this Act or the regulations;

(f) violates or fails to comply with a written undertaking made by that person to the Commission, the Director or the Tribunal under this Act or the regulations; or

(g) violates or fails to comply with any provision of the regulations.

9.6( 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.

Misleading or untrue statements

9.61 In carrying on a regulated activity, no person shall make a statement that the person knows or reasonably ought to know 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.

Interim preservation of property

9.62( 1) On the application of the Commission, the Tribunal may make one or more of the following orders if the Tribunal considers it expedient for the administration of this Act or the regulations or to assist in the administration of similar legislation of another jurisdiction:

(a) an order directing a person having on deposit or under control or for safekeeping any funds, securities or property to retain the funds, securities or property and to hold them;

(b) an order directing a person to refrain from withdrawing the person’s funds, securities or property from any other person having any of them on deposit or under control or for safekeeping; or

(c) an order directing a person to hold all funds, securities or property of clients or others in the person’s possession or control in trust for any interim receiver, custodian, trustee, receiver, receiver and manager or liquidator appointed under the Business Corporations Act, the Companies Act, the Judicature Act, the Bankruptcy and Insolvency Act (Canada), the Winding-up and Restructuring Act (Canada) or any other Act of the Legislature or of Canada.

9.62( 2) An order under subsection (1) that names a financial institution shall apply only to the branches of the financial institution identified in the order.

9.62( 3) An order under subsection (1) is effective for seven days after its making, but the Commission may apply to the Court of Queen’s Bench to continue the order or for any other order that the Court of Queen’s Bench considers appropriate.

9.62( 4) An order under subsection (1) may be made ex parte but, in that event, copies of the order shall be sent without delay by any means that the Tribunal determines to all persons named in the order.

9.62( 5) A person in receipt of an order under subsection (1) who is in doubt as to the application of the order to any funds, securities or property or as to a claim being made to that person by any person not named in the order may apply to the Tribunal for direction or clarification.

9.62( 6) The Tribunal, on the application of the Commission or of a person directly affected by the order, may revoke an order under subsection (1) or permit the release of any funds, securities or property in respect of which the order was made.

9.62( 7) A notice of an order under subsection (1) may be registered or recorded against the lands or claims identified in the order by submitting the notice to the appropriate registry office established under the Registry Act or to the appropriate land titles office established under the Land Titles Act.

9.62( 8) The Tribunal may order a notice submitted under subsection (7) to be revoked or modified and, if an order is made, the Commission shall submit a copy of the revocation or modification to the appropriate registry office or land titles office.

9.62( 9) On submission of a notice under subsection (7) or a copy of a written revocation or modification under subsection (8), the notice or the copy of the revocation or modification shall be registered or recorded in the registry office or land titles office, as the case may be, by the registrar and has the same effect as the registration or recording of a certificate of pending litigation.

Orders in the public interest

9.7( 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 this Act or the regulations do not apply to a person permanently or for any period specified in the order;

(d) an order that a person submit to a review of the person’s practices and procedures relating to regulated activities and institute any changes directed by the Tribunal;

(e) if the Tribunal is satisfied that this Act or the regulations 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 violating or comply with, and that the directors and officers of the person cause the person to cease violating or to comply with, this Act and the regulations;

(i) if a person has not complied with this Act or the regulations, an order requiring the person to disgorge to the Commission any amounts obtained as a result of the non-compliance.

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

9.7( 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.

9.7( 4) Unless the parties and the Tribunal consent, no order shall be made under this section without a hearing.

9.7( 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).

9.7( 6) The temporary order shall take effect immediately and shall expire on the fifteenth day after its making unless extended by the Tribunal.

9.7( 7) The Tribunal may extend a temporary order until the hearing is concluded if a hearing is commenced within the 15-day period.

9.7( 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

9.71( 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 violated or failed to comply with this Act or the regulations, and

(b) is of the opinion that it is in the public interest to make the order.

9.71( 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.

Directors and officers

9.8 If a person other than an individual violates or has not complied with this Act or the regulations, a director or officer of the person who authorized, permitted or acquiesced in the violation or non-compliance shall be deemed also to have violated or not complied with this Act or the regulations, whether or not any proceeding has been commenced against the person under this Act or the regulations or any order has been made against the person under section 9.7.

Resolution of administrative proceedings

9.81( 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 Act or the regulations 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 the Director, as the case may be, or

(c) a decision of the Commission, the Tribunal or the Director, as the case may be, made without a hearing or without compliance with a requirement of this Act or the regulations, if the parties have waived the hearing or compliance with the requirement.

9.81( 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

9.9 No proceeding under this Act or the regulations shall be commenced more than six years after the date of the occurrence of the last event on which the proceeding is based.

PART 6

GENERAL

Conflict with the Right to Information and Protection of Privacy Act

9.91 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.

1( 16) Section 11 of the Act is amended

(a) by adding after paragraph (f) the following:

(f.1) requiring, for the purposes of subsection 9.1(2), that certain books, records or documents be kept;

(b) by adding after paragraph (j) the following:

(j.1) authorizing disclosures for the purposes of subsection 9.51(2);

(j.2) prescribing circumstances, fees and expenses for the purposes of subsection 9.12(8);

1( 17) The Act is amended by adding after section 11 the following:

SCHEDULE A

Number of provision

3(1)
4(3)
5
6
9(4)
9.1(2)
9.1(3)
9.1(4)
9.1(5)(a)
9.1(5)(b)
9.11(1)
9.21
9.22(1)
9.32(5)
9.61
9.7(3)

Regulation under the Collection Agencies Act

2( 1) Paragraph 9(3)(a) of New Brunswick Regulation 84-256 under the Collection Agencies Act is amended by striking out “the Registrar of The Court of Queen’s Bench of New Brunswick or to such clerk of The Court of Queen’s Bench of New Brunswick as the Registrar may specify” and substituting “the Registrar of the Court of Queen’s Bench or to any clerk of the Court of Queen’s Bench that the Registrar specifies”.

2( 2) Subsection 12(1) of the Regulation is repealed and the following is substituted:

12( 1) The holder of a licence to carry on the business of a collection agency or the holder of a licence to operate a branch office of a collection agency shall maintain a trust account in a chartered bank, credit union or trust company and deposit all money received on behalf of a client in the trust account.

2( 3) Section 13 of the Regulation is repealed and the following is substituted:

13 On the issuance of a licence to carry on the business of a collection agency or a licence to operate a branch office of a collection agency, the holder of the licence shall without delay provide written notice to the Director of the location within the Province at which the holder proposes to keep records and books of account and shall, at all times during the term of the licence, keep the records and accounts at that place or at some other place in the Province, of which written notice has first been provided to the Director.

2( 4) Section 15 of the Regulation is repealed.

Co-operative Associations Act

3( 1) Section 1 of the Co-operative Associations Act, chapter C-22.1 of the Acts of New Brunswick, 1978, is amended by adding the following definitions in alphabetical order:

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

“regulated activity” means any activity governed by this Act or the regulations; (activité réglementée)

3( 2) Subsection 4(4) of the Act is repealed and the following is substituted:

4( 4) No person shall fail to produce on the request of the Inspector any book or document or fail to answer any question relating to the affairs or business of the association.

3( 3) Subsection 38(12) of the Act is repealed and the following is substituted:

38( 12) No auditor shall wilfully fail to report on the accounts of an association as required by subsection (9).

3( 4) The Act is amended by adding after section 59 the following:

Offences generally

59.1( 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) wilfully neglects or refuses to do any act, or to submit, provide, produce, deliver, give or file any information or material, required for the purposes of this Act by the Inspector or other person authorized under this Act;

(b) wilfully neglects or refuses to submit or provide any information or material concerning an association that the Inspector requires in the form he or she requires;

(c) makes a statement in any information or material submitted, provided, produced, delivered or given to or filed with the Commission, the Inspector or any person acting under the authority of the Commission or the Inspector 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;

(d) makes a statement in any information or material required to be submitted, provided, produced, delivered, given or filed under this Act or the regulations 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;

(e) withholds, destroys, conceals, alters or refuses to produce any information or thing reasonably required for the purposes of an administrative proceeding under this Act or the regulations;

(f) violates or fails to comply with a provision of this Act that is listed in Schedule A;

(g) violates or fails to comply with a decision, ruling, order, temporary order or direction of the Commission, the Inspector or the Tribunal made or given under this Act or the regulations;

(h) violates or fails to comply with a written undertaking made by that person to the Commission, the Inspector or the Tribunal under this Act or the regulations; or

(i) violates or fails to comply with any provision of the regulations.

59.1( 2) Without limiting the availability of other defences, no person commits an offence under paragraph (1)(c) or (d) if

Misleading or untrue statements

59.11 In carrying on a regulated activity, no person shall make a statement that the person knows or reasonably ought to know 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.

False or misleading advertisement

59.2( 1) No association shall make any false, misleading or deceptive statements in any advertisement, circular, pamphlet or similar material prepared or used in respect of a regulated activity.

59.2( 2) If, in the opinion of the Inspector, an association has made a false, misleading or deceptive statement in any advertisement, circular, pamphlet or similar material referred to in subsection (1), the Inspector may order the association to stop using that material immediately.

Interim preservation of property

59.3( 1) On the application of the Commission, the Tribunal may make one or more of the following orders if the Tribunal considers it expedient for the administration of this Act or the regulations or to assist in the administration of similar legislation of another jurisdiction:

(a) an order directing a person having on deposit or under control or for safekeeping any funds, securities or property to retain the funds, securities or property and to hold them;

(b) an order directing a person to refrain from withdrawing the person’s funds, securities or property from any other person having any of them on deposit or under control or for safekeeping; or

(c) an order directing a person to hold all funds, securities or property of clients or others in the person’s possession or control in trust for any interim receiver, custodian, trustee, receiver, receiver and manager or liquidator appointed under the Business Corporations Act, the Companies Act, the Judicature Act, this Act, the Bankruptcy and Insolvency Act (Canada), the Winding-up and Restructuring Act (Canada) or any other Act of the Legislature or of Canada.

59.3( 2) An order under subsection (1) that names a financial institution shall apply only to the branches of the financial institution identified in the order.

59.3( 3) An order under subsection (1) is effective for seven days after its making, but the Commission may apply to the Court of Queen’s Bench to continue the order or for any other order that the Court of Queen’s Bench considers appropriate.

59.3( 4) An order under subsection (1) may be made ex parte but, in that event, copies of the order shall be sent without delay by any means that the Tribunal determines to all persons named in the order.

59.3( 5) A person in receipt of an order under subsection (1) who is in doubt as to the application of the order to any funds, securities or property or as to a claim being made to that person by any person not named in the order may apply to the Tribunal for direction or clarification.

59.3( 6) The Tribunal, on the application of the Commission or of a person directly affected by the order, may revoke an order under subsection (1) or permit the release of any funds, securities or property in respect of which the order was made.

59.3( 7) A notice of an order under subsection (1) may be registered or recorded against the lands or claims identified in the order by submitting the notice to the appropriate registry office established under the Registry Act or to the appropriate land titles office established under the Land Titles Act.

59.3( 8) The Tribunal may order a notice submitted under subsection (7) to be revoked or modified and, if an order is made, the Commission shall submit a copy of the revocation or modification to the appropriate registry office or land titles office.

59.3( 9) On submission of a notice under subsection (7) or a copy of a written revocation or modification under subsection (8), the notice or the copy of the revocation or modification shall be registered or recorded in the registry office or land titles office, as the case may be, by the registrar and has the same effect as the registration or recording of a certificate of pending litigation.

Orders in the public interest

59.4( 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 any exemptions contained in this Act or the regulations do not apply to a person permanently or for any period specified in the order;

(b) an order that a person cease conducting all or any regulated activities;

(c) an order that a person submit to a review of the person’s practices and procedures relating to regulated activities and institute any changes directed by the Tribunal;

(d) if the Tribunal is satisfied that this Act or the regulations 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;

(e) an order that a person be reprimanded;

(f) 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;

(g) an order that a person cease violating or comply with, and that the directors and officers of the person cause the person to cease violating or to comply with, this Act and the regulations;

(h) if a person has not complied with this Act or the regulations, an order requiring the person to disgorge to the Commission any amounts obtained as a result of the non-compliance.

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

59.4( 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.

59.4( 4) Unless the parties and the Tribunal consent, no order shall be made under this section without a hearing.

59.4( 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) or (e).

59.4( 6) The temporary order shall take effect immediately and shall expire on the fifteenth day after its making unless extended by the Tribunal.

59.4( 7) The Tribunal may extend a temporary order until the hearing is concluded if a hearing is commenced within the 15-day period.

59.4( 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

59.5( 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 violated or failed to comply with this Act or the regulations, and

(b) is of the opinion that it is in the public interest to make the order.

59.5( 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 Inspector related to the same matter.

Directors and officers

59.6 If a person other than an individual violates or has not complied with this Act or the regulations, a director or officer of the person who authorized, permitted or acquiesced in the violation or non-compliance shall be deemed also to have violated or not complied with this Act or the regulations, whether or not any proceeding has been commenced against the person under this Act or the regulations or any order has been made against the person under section 59.4.

Resolution of administrative proceedings

59.7( 1) Despite any other provision of this Act or the regulations, an administrative proceeding conducted by the Commission, the Tribunal or the Inspector under this Act or the regulations may be disposed of by

(a) an agreement approved by the Commission, the Tribunal or the Inspector, as the case may be,

(b) a written undertaking made by a person to the Commission, the Tribunal or the Inspector that has been accepted by the Commission, the Tribunal or the Inspector, as the case may be, or

(c) a decision of the Commission, the Tribunal or the Inspector, as the case may be, made without a hearing or without compliance with a requirement of this Act or the regulations, if the parties have waived the hearing or compliance with the requirement.

59.7( 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 Inspector under any other provision of this Act or under the regulations.

Limitation period

59.8 Unless otherwise provided in this Act, no proceeding under this Act or the regulations shall be commenced more than six years after the date of the occurrence of the last event on which the proceeding is based.

3( 5) Section 60 of the Act is repealed.

3( 6) Schedule A of the Act is repealed and the following is substituted:

SCHEDULE A

Number of provision

4(4)
10(2)
20
21(1)
21(2)
21(3)
21(4)
34(2)(a)
34(3)
38(8)
38(11)
38(12)
40(1)
41(1)
41(2)
49
51(2)
51(5)
51(6)
51(8)
56(1)
56(2)
56(3)
59.11
59.2(1)
59.4(3)

Credit Unions Act

4( 1) Section 1 of the Credit Unions Act, chapter C-32.2 of the Acts of New Brunswick, 1992, is amended by adding the following definitions in alphabetical order:

“investigator” means a person appointed as an investigator under section 277.2; (enquêteur)

“regulated activity” means any activity governed by this Act or the regulations; (activité réglementée)

4( 2) Subsection 27(4) of the Act is repealed and the following is substituted:

27( 4) No person shall use a register for purposes not related to the affairs of the credit union.

4( 3) Subsection 118(4) of the Act is repealed and the following is substituted:

118( 4) No auditor or former auditor of a credit union shall fail to comply with subsection (2) without reasonable cause.

4( 4) Subsection 123(4) of the Act is repealed and the following is substituted:

123( 4) No director or officer of a credit union shall knowingly fail to comply with subsection (1) or (3).

4( 5) Subsection 222(2) of the Act is repealed.

4( 6) Section 248 of the Act is repealed.

4( 7) Section 249 of the Act is repealed and the following is substituted:

Offences generally

249( 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 to or filed with the Commission, the Superintendent, an investigator or any person acting under the authority of the Commission or the Superintendent 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 this Act or the regulations;

(d) violates or fails to comply with a provision of this Act that is listed in Schedule A;

(e) violates or fails to comply with a decision, ruling, order, interim order or direction of the Commission, the Superintendent or the Tribunal made or given under this Act or the regulations;

(f) violates or fails to comply with a written undertaking made by that person to the Commission, the Superintendent or the Tribunal under this Act or the regulations; or

(g) violates or fails to comply with any provision of the regulations.

249( 2) Without limiting the availability of other defences, no person commits an offence under paragraph (1)(a) or (b) if

4( 8) The Act is amended by adding after section 249 the following:

Misleading or untrue statements

249.1 In carrying on a regulated activity, no person shall make a statement that the person knows or reasonably ought to know 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.

False or misleading advertisement

249.11( 1) No credit union shall make any false, misleading or deceptive statements in any advertisement, circular, pamphlet or similar material prepared or used in respect of a regulated activity.

249.11( 2) If, in the opinion of the Superintendent, a credit union has made a false, misleading or deceptive statement in any advertisement, circular, pamphlet or similar material referred to in subsection (1), the Superintendent may order the credit union to stop using that material immediately.

Interim preservation of property

249.2( 1) On the application of the Commission, the Tribunal may make one or more of the following orders if the Tribunal considers it expedient for the administration of this Act or the regulations or to assist in the administration of similar legislation of another jurisdiction:

(a) an order directing a person having on deposit or under control or for safekeeping any funds, securities or property to retain the funds, securities or property and to hold them;

(b) an order directing a person to refrain from withdrawing the person’s funds, securities or property from any other person having any of them on deposit or under control or for safekeeping; or

(c) an order directing a person to hold all funds, securities or property of clients or others in the person’s possession or control in trust for any interim receiver, custodian, trustee, receiver, receiver and manager or liquidator appointed under the Business Corporations Act, the Companies Act, the Judicature Act, this Act, the Bankruptcy and Insolvency Act (Canada), the Winding-up and Restructuring Act (Canada) or any other Act of the Legislature or of Canada.

249.2( 2) An order under subsection (1) that names a financial institution shall apply only to the branches of the financial institution identified in the order.

249.2( 3) An order under subsection (1) is effective for seven days after its making, but the Commission may apply to the Court to continue the order or for any other order that the Court considers appropriate.

249.2( 4) An order under subsection (1) may be made ex parte but, in that event, copies of the order shall be sent without delay by any means that the Tribunal determines to all persons named in the order.

249.2( 5) A person in receipt of an order under subsection (1) who is in doubt as to the application of the order to any funds, securities or property or as to a claim being made to that person by any person not named in the order may apply to the Tribunal for direction or clarification.

249.2( 6) The Tribunal, on the application of the Commission or of a person directly affected by the order, may revoke an order under subsection (1) or permit the release of any funds, securities or property in respect of which the order was made.

249.2( 7) A notice of an order under subsection (1) may be registered or recorded against the lands or claims identified in the order by submitting the notice to the appropriate registry office established under the Registry Act or to the appropriate land titles office established under the Land Titles Act.

249.2( 8) The Tribunal may order a notice submitted under subsection (7) to be revoked or modified and, if an order is made, the Commission shall submit a copy of the revocation or modification to the appropriate registry office or land titles office.

249.2( 9) On submission of a notice under subsection (7) or a copy of a written revocation or modification under subsection (8), the notice or the copy of the revocation or modification shall be registered or recorded in the registry office or land titles office, as the case may be, by the registrar and has the same effect as the registration or recording of a certificate of pending litigation.

Orders in the public interest

249.21( 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 any exemptions contained in this Act or the regulations do not apply to a person permanently or for any period specified in the order;

(b) an order that a person cease conducting all or any regulated activities;

(c) an order that a person submit to a review of the person’s practices and procedures relating to regulated activities and institute any changes directed by the Tribunal;

(d) if the Tribunal is satisfied that this Act or the regulations 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;

(e) an order that a person be reprimanded;

(f) 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;

(g) an order that a person cease violating or comply with, and that the directors and officers of the person cause the person to cease violating or to comply with, this Act and the regulations;

(h) if a person has not complied with this Act or the regulations, an order requiring the person to disgorge to the Commission any amounts obtained as a result of the non-compliance.

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

249.21( 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.

249.21( 4) Unless the parties and the Tribunal consent, no order shall be made under this section without a hearing.

249.21( 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 an interim order under paragraph (1)(a), (b) or (e).

249.21( 6) The interim order shall take effect immediately and shall expire on the fifteenth day after its making unless extended by the Tribunal.

249.21( 7) The Tribunal may extend an interim order until the hearing is concluded if a hearing is commenced within the 15-day period.

249.21( 8) The Commission shall without delay give written notice of an order or interim order made under this section to any person directly affected by the order or interim order.

Administrative penalty

249.3( 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 violated or failed to comply with this Act or the regulations, and

(b) is of the opinion that it is in the public interest to make the order.

249.3( 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 Superintendent related to the same matter.

Directors and officers

249.4 If a person other than an individual violates or has not complied with this Act or the regulations, a director or officer of the person who authorized, permitted or acquiesced in the violation or non-compliance shall be deemed also to have violated or not complied with this Act or the regulations, whether or not any proceeding has been commenced against the person under this Act or the regulations or any order has been made against the person under section 249.21.

Resolution of administrative proceedings

249.5( 1) Despite any other provision of this Act or the regulations, an administrative proceeding conducted by the Commission, the Tribunal or the Superintendent under this Act or the regulations may be disposed of by

(a) an agreement approved by the Commission, the Tribunal or the Superintendent, as the case may be,

(b) a written undertaking made by a person to the Commission, the Tribunal or the Superintendent that has been accepted by the Commission, the Tribunal or the Superintendent, as the case may be, or

(c) a decision of the Commission, the Tribunal or the Superintendent, as the case may be, made without a hearing or without compliance with a requirement of this Act or the regulations, if the parties have waived the hearing or compliance with the requirement.

249.5( 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 Superintendent under any other provision of this Act or under the regulations.

Limitation period

249.6 Unless otherwise provided in this Act, no proceeding under this Act or the regulations shall be commenced more than six years after the date of the occurrence of the last event on which the proceeding is based.

4( 9) Subsection 250(2) is repealed.

4( 10) Section 266.4 of the Act is repealed.

4( 11) The Act is amended by adding after section 277 the following:

PART XV.1

INVESTIGATIONS

Provision of information to the Superintendent

277.1( 1) The Superintendent may make an order under subsection (2)

(a) for the administration of this Act or the regulations, or

(b) to assist in the administration of similar legislation of another jurisdiction.

277.1( 2) By an order applicable generally or to one or more persons named or otherwise described in the order, the Superintendent may require any of the following persons to provide information or to produce books, registers, accounts, records or other documents or classes of books, registers, accounts, records or other documents specified or otherwise described in the order within the time or at the intervals specified in the order:

(a) the stabilization board; or

(b) a credit union.

277.1( 3) The Superintendent may require that the authenticity, accuracy or completeness of information provided or of a book, register, account, record or other document or a class of books, registers, accounts, records or other documents produced pursuant to an order under subsection (2) be verified by affidavit.

277.1( 4) The Superintendent may require that the information provided or that the books, registers, accounts, records or other documents or classes of books, registers, accounts, records or other documents produced pursuant to an order made under subsection (2) be delivered in electronic form, if the information or the books, registers, accounts, records or other documents or classes of books, registers, accounts, records or other documents are already available in that form.

Investigation order

277.2( 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 Act or the regulations, or

(b) to assist in the administration of similar legislation of another jurisdiction.

277.2( 2) In its order, the Commission shall specify the scope of an investigation to be carried out under subsection (1).

Powers of investigator

277.3( 1) An investigator may, with respect to the person who is the subject of the investigation, investigate, inspect and examine

(a) the business or affairs of that person,

(b) any books, registers, accounts, records or other documents or any 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.

277.3( 2) For the purposes of an investigation under this Part, an investigator may inspect and examine any book, register, account, record or other document or thing, whether in possession or control of the person in respect of whom the investigation is ordered or any other person.

277.3( 3) An investigator making an investigation under this Part 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, register, account, record or other 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, register, account, record or other document or thing referred to in paragraph (a) for inspection or examination, and

(c) on giving a receipt, remove the book, register, account, record or other document or thing inspected or examined under paragraph (a) or (b) for the purpose of further inspection or examination.

277.3( 4) Inspection or examination under this section shall be completed as soon as possible and the books, registers, accounts, records or other documents or things shall be returned promptly to the person who produced them.

277.3( 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, register, account, record or other document or thing reasonably required under subsection (3) by an investigator.

Power to compel evidence

277.4( 1) An investigator making an investigation under this Part 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, registers, accounts, records or other documents or things or classes of books, registers, accounts, records or other documents or things as the Court has for the trial of civil actions.

277.4( 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, registers, accounts, records or other documents or things or classes of books, registers, accounts, records or other documents or 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.

277.4( 3) A person giving evidence at an investigation conducted under this section may be represented by legal counsel.

277.4( 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

277.5 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

277.6( 1) On request to the investigator by the person who, at the time of the seizure, was in lawful possession of books, registers, accounts, records or other documents or things seized under this Part, the books, registers, accounts, records or other 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.

277.6( 2) If books, registers, accounts, records or other documents or things are seized under this Part and the matter for which they were seized is concluded, the investigator shall return those books, registers, accounts, records or other 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.

277.6( 3) If books, registers, accounts, records or other documents or things are seized under this Part and the person who was in lawful possession of the books, registers, accounts, records or other documents or things at the time of the seizure alleges that they 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, registers, accounts, records or other documents or things.

277.6( 4) On a motion under subsection (3), the Court shall order the return of any books, registers, accounts, records or other 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 them at the time of the seizure.

Report of investigation

277.7( 1) If an investigation has been made under this Part, 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.

277.7( 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

277.8( 1) For the purpose of protecting the integrity of an investigation under this Part, 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;

(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.

277.8( 2) An order under subsection (1) does not apply to disclosures authorized by the regulations or by the Superintendent in writing.

277.8( 3) An investigator making an investigation under this Part may make, or authorize the making of, any disclosure of information that may be required for the effectual conduct of the investigation.

Non-compellability

277.9 None of the following persons is 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 Part:

(a) an investigator;

(b) the Commission;

(d) an employee of the Commission;

(e) a member of the Tribunal; and

(f) a person engaged by the Commission under section 18 of the Financial and Consumer Services Commission Act.

4( 12) The Act is amended by adding after section 291 the following:

Conflict with the Right to Information and Protection of Privacy Act

291.1 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.

4( 13) Section 292 of the Act is amended by adding after paragraph (mm) the following:

(mm.1) authorizing disclosures for the purposes of subsection 277.8(2);

4( 14) Schedule A of the Act is repealed and the following is substituted:

SCHEDULE A

Number of provision

5
12(5)
18(3)
19(1)
20
21(2)
27(4)
28(2)
35(1)
35(2)
39
48(3)
52(1)
52(2)
53
55
56
98
100(1)
103(1)
103(2)
109
112(1)
113(6)
118(4)
123(4)
192.21
192.22
222(1)
249.1
249.11(1)
249.21(3)
277.3(5)

Direct Sellers Act

5( 1) Section 1 of the Direct Sellers Act, chapter 141 of the Revised Statutes, 2011, is amended by adding the following definitions in alphabetical order:

“compliance officer” means a person appointed as a compliance officer under section 24.12. (agent de conformité)

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

“investigator” means a person appointed as an investigator under section 24.31. (enquêteur)

“regulated activity” means any activity governed by this Act or the regulations. (activité réglementée)

5( 2) The Act is amended by adding after section 2 the following:

APPLICATION

5( 3) The Act is amended by adding after section 3 the following:

LICENCES

5( 4) Section 4 of the Act is amended

(a) by repealing subsection (7);

(b) by adding after subsection (8) the following:

4( 9) The Director may at any time restrict a licence by imposing any terms and conditions that he or she considers appropriate on the licence.

4( 10) The holder of a licence shall comply with the terms and conditions imposed by the Director under subsection (9) and to any terms and conditions prescribed by regulation for the licence.

4( 11) The Director shall not refuse to issue a licence or impose terms and conditions on the licence under subsection (9) without giving the person applying for the licence or the holder of the licence an opportunity to be heard.

5( 5) The Act is amended by adding after section 11 the following:

DIRECT SALES CONTRACTS

5( 6) The Act is amended by adding after section 14 the following:

NOTICE OF CHANGE OF ADDRESS

5( 7) The Act is amended by adding after section 15 the following:

PARTIES TO DIRECT SALES CONTRACTS

5( 8) The Act is amended by adding after section 16 the following:

SUSPENSION OR CANCELLATION OF LICENCE

5( 9) Section 17 of the Act is amended

(a) by repealing paragraph (1)(b) and substituting the following:

(b) makes a statement in any information or material submitted, provided, produced, delivered or given to or filed with the Commission, the Director, a compliance officer or any person acting under the authority of the Commission or the Director 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;

(b) by adding after subsection (1) the following:

17( 1.1) The Director shall not suspend or cancel a licence under subsection (1) without giving the holder of the licence an opportunity to be heard.

5( 10) The Act is amended by adding after section 17 the following:

ADDITIONAL INFORMATION

5( 11) The heading “Additional information from licensee” preceding section 18 of the Act is repealed and the following is substituted:

Additional information from applicant for a licence

5( 12) Section 18 of the Act is amended by striking out “or a licensee”.

5( 13) The Act is amended by adding after section 18 the following:

BONDS

5( 14) Subparagraph 19(5)(a)(i) of the Act is amended by striking out “The Court of Queen’s Bench of New Brunswick” and substituting “the Court of Queen’s Bench”.

5( 15) The Act is amended by adding after section 20 the following:

APPEALS

5( 16) The Act is amended by adding after section 21 the following:

CANCELLATION OF DIRECT SALES CONTRACTS

5( 17) The Act is amended by adding after section 24 the following:

RECORD KEEPING, ADVERTISING AND COMPLIANCE REVIEWS

Record-keeping

24.1( 1) The following definition applies in this section.

“regulatory authority” means a person empowered by the laws of a jurisdiction to regulate the activities of a direct seller or a vendor. (organisme de réglementation)

24.1( 2) A direct seller or a vendor shall keep books, records and documents that are necessary for the proper recording of its business and affairs and shall keep any other books, records and documents that are otherwise required under this Act or the regulations.

24.1( 3) A direct seller or a vendor shall keep the books, records and documents at a safe location and in a durable form.

24.1( 4) A direct seller or a vendor shall retain the books, records and documents for a minimum period of seven years after the date of the transaction to which the books, records or documents relate.

24.1( 5) A direct seller or a vendor shall deliver to the Director, or to any other employee of the Commission, at any time that the Director or other employee requires

(a) any of the books, records and documents that are required to be kept by the direct seller or vendor under this Act or the regulations, and

(b) any filings, reports or other communications made to any other regulatory authority.

False or misleading advertisement

24.11( 1) No holder of a licence issued under this Act shall make any false, misleading or deceptive statements in any advertisement, circular, pamphlet or similar material prepared or used in respect of a regulated activity.

24.11( 2) If, in the opinion of the Director, a holder of a licence issued under this Act has made a false, misleading or deceptive statement in any advertisement, circular, pamphlet or similar material referred to in subsection (1), the Director may order the holder of the licence to stop using that material immediately.

Compliance review

24.12( 1) The Commission may appoint in writing a person as a compliance officer for the purpose of ensuring compliance with this Act and the regulations.

24.12( 2) The Commission shall issue to every compliance officer a certificate of appointment and every compliance officer, in the execution of his or her duties under this Act or the regulations, shall produce his or her certificate of appointment on request.

24.12( 3) For the purpose of determining whether this Act and the regulations are being complied with, a compliance officer, in carrying out a compliance review, may

(a) enter the premises of a direct seller or vendor during normal business hours,

(b) require a direct seller or vendor, an officer or employee of either of them or a salesperson of a vendor to produce for inspection, examination, auditing or copying any books, records or documents relating to the business or affairs of the direct seller or vendor,

(c) inspect, examine, audit or copy the books, records or documents relating to the business or affairs of a direct seller or vendor, and

(d) question a direct seller or vendor, an officer or employee of either of them or a salesperson of a vendor in relation to the business or affairs of the direct seller or vendor.

24.12( 4) In carrying out a compliance review, a compliance officer may

(a) use a data processing system at the premises where the books, records or documents are kept,

(b) reproduce any book, record or document, and

(c) use any copying equipment at the premises where the books, records or documents are kept to make copies of any book, record or document.

24.12( 5) A compliance officer may carry out a compliance review within or outside the Province.

24.12( 6) A compliance officer shall not enter a private dwelling under subsection (3) unless the compliance officer has the consent of the occupier or has obtained an entry warrant under the Entry Warrants Act.

24.12( 7) Before or after attempting to enter or to have access to any premises, a compliance officer may apply for an entry warrant under the Entry Warrants Act.

24.12( 8) The Commission may, in circumstances prescribed by regulation, require a direct seller or vendor in respect of which a compliance review was carried out to pay the Commission any fee prescribed by regulation and to reimburse the Commission for any expenses prescribed by regulation.

Removal of documents

24.2( 1) A compliance officer who removes books, records or documents to make a copy or extract of them or any part of them shall give a receipt to the occupier of the premises for the books, records or documents removed and return the books, records or documents as soon as possible after the making of copies or extracts.

24.2( 2) A copy or extract of any book, record or document related to a compliance review and purporting to be certified by a compliance officer is admissible in evidence in any action, proceeding or prosecution and is proof, in the absence of evidence to the contrary, of the original without proof of the appointment, authority or signature of the person purporting to have certified the copy or extract.

Misleading statements

24.21 No person shall knowingly make a false or misleading statement, either orally or in writing, to a compliance officer while the compliance officer is engaged in carrying out his or her duties under this Act or the regulations.

Obstruction

24.22( 1) No person shall obstruct or interfere with a compliance officer who is carrying out or attempting to carry out a compliance review under this Act, or withhold, destroy, conceal, alter or refuse to produce any information or thing reasonably required by a compliance officer for the purposes of the compliance review.

24.22( 2) A refusal of consent to enter a private dwelling is not and shall not be considered to be interfering with or obstructing within the meaning of subsection (1), except if an entry warrant has been obtained.

INVESTIGATIONS

Provision of information to Director

24.3( 1) The Director may make an order under subsection (2)

(a) for the administration of this Act or the regulations, or

(b) to assist in the administration of similar legislation of another jurisdiction.

24.3( 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) the holder of a licence issued under this Act;

(b) a former holder of a licence issued under this Act; or

(c) any person that does not hold a licence under this Act and that is, or the Director has reason to suspect is, carrying out a regulated activity.

24.3( 3) The Director may require that the authenticity, accuracy or completeness of information provided or of a book, record or document or a class of books, records or documents produced pursuant to an order under subsection (2) be verified by affidavit.

24.3( 4) The Director may require that the information 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

24.31( 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 Act or the regulations, or

(b) to assist in the administration of similar legislation of another jurisdiction.

24.31( 2) In its order, the Commission shall specify the scope of an investigation to be carried out under subsection (1).

Powers of investigator

24.32( 1) An investigator may, with respect to the person who is the subject of the investigation, investigate, inspect and examine

(a) the business or 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.

24.32( 2) For the purposes of an investigation under this Act, an investigator may inspect and examine any book, record, document or thing, whether in possession or control of the person in respect of whom the investigation is ordered or any other person.

24.32( 3) An investigator making an investigation under this Act may, on production of the order appointing him or her,

(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.

24.32( 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.

24.32( 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

24.4( 1) An investigator making an investigation under this Act 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 of Queen’s Bench has for the trial of civil actions.

24.4( 2) On the application of an investigator to the Court of Queen’s Bench, 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 of Queen’s Bench.

24.4( 3) A person giving evidence at an investigation conducted under this section may be represented by legal counsel.

24.4( 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

24.41 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

24.42( 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 Act, 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.

24.42( 2) If books, records, documents or things are seized under this Act 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.

24.42( 3) If books, records, documents or things are seized under this Act 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 of Queen’s Bench for the return of the books, records, documents or things.

24.42( 4) On a motion under subsection (3), the Court of Queen’s Bench 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

24.5( 1) If an investigation has been made under this Act, 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.

24.5( 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

24.51( 1) For the purpose of protecting the integrity of an investigation under this Act, 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;

(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.

24.51( 2) An order under subsection (1) does not apply to disclosures authorized by the regulations or by the Director in writing.

24.51( 3) An investigator making an investigation under this Act may make, or authorize the making of, any disclosure of information that may be required for the effectual conduct of the investigation.

Non-compellability

24.52 None of the following persons is 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 Act:

(a) an investigator;

(b) the Commission;

(d) an employee of the Commission;

(e) a member of the Tribunal; and

(f) a person engaged by the Commission under section 18 of the Financial and Consumer Services Commission Act.

ENFORCEMENT

Offences generally

24.6( 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 $25,000 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 $100,000:

(c) withholds, destroys, conceals, alters or refuses to produce any information or thing reasonably required for the purposes of an administrative proceeding under this Act or the regulations;

(d) violates or fails to comply with a provision of this Act that is listed in Schedule A;

(e) violates 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 this Act or the regulations;

(f) violates or fails to comply with a written undertaking made by that person to the Commission, the Director or the Tribunal under this Act or the regulations; or

(g) violates or fails to comply with any provision of the regulations.

24.6( 2) Without limiting the availability of other defences, no person commits an offence under paragraph (1)(a) or (b) if

Misleading or untrue statements

24.61 In carrying on a regulated activity, no person shall make a statement that the person knows or reasonably ought to know 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.

Interim preservation of property

24.62( 1) On the application of the Commission, the Tribunal may make one or more of the following orders if the Tribunal considers it expedient for the administration of this Act or the regulations or to assist in the administration of similar legislation of another jurisdiction:

(a) an order directing a person having on deposit or under control or for safekeeping any funds, securities or property to retain the funds, securities or property and to hold them;

(b) an order directing a person to refrain from withdrawing the person’s funds, securities or property from any other person having any of them on deposit or under control or for safekeeping; or

24.62( 2) An order under subsection (1) that names a financial institution shall apply only to the branches of the financial institution identified in the order.

24.62( 3) An order under subsection (1) is effective for seven days after its making, but the Commission may apply to the Court of Queen’s Bench to continue the order or for any other order that the Court of Queen’s Bench considers appropriate.

24.62( 4) An order under subsection (1) may be made ex parte but, in that event, copies of the order shall be sent without delay by any means that the Tribunal determines to all persons named in the order.

24.62( 5) A person in receipt of an order under subsection (1) who is in doubt as to the application of the order to any funds, securities or property or as to a claim being made to that person by any person not named in the order may apply to the Tribunal for direction or clarification.

24.62( 6) The Tribunal, on the application of the Commission or of a person directly affected by the order, may revoke an order under subsection (1) or permit the release of any funds, securities or property in respect of which the order was made.

24.62( 7) A notice of an order under subsection (1) may be registered or recorded against the lands or claims identified in the order by submitting the notice to the appropriate registry office established under the Registry Act or to the appropriate land titles office established under the Land Titles Act.

24.62( 8) The Tribunal may order a notice submitted under subsection (7) to be revoked or modified and, if an order is made, the Commission shall submit a copy of the revocation or modification to the appropriate registry office or land titles office.

24.62( 9) On submission of a notice under subsection (7) or a copy of a written revocation or modification under subsection (8), the notice or the copy of the revocation or modification shall be registered or recorded in the registry office or land titles office, as the case may be, by the registrar and has the same effect as the registration or recording of a certificate of pending litigation.

Orders in the public interest

24.7( 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 this Act or the regulations do not apply to a person permanently or for any period specified in the order;

(d) an order that a person submit to a review of the person’s practices and procedures relating to regulated activities and institute any changes directed by the Tribunal;

(e) if the Tribunal is satisfied that this Act or the regulations 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 violating or comply with, and that the directors and officers of the person cause the person to cease violating or to comply with, this Act and the regulations;

(i) if a person has not complied with this Act or the regulations, an order requiring the person to disgorge to the Commission any amounts obtained as a result of the non-compliance.

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

24.7( 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.

24.7( 4) Unless the parties and the Tribunal consent, no order shall be made under this section without a hearing.

24.7( 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).

24.7( 6) The temporary order shall take effect immediately and shall expire on the fifteenth day after its making unless extended by the Tribunal.

24.7( 7) The Tribunal may extend a temporary order until the hearing is concluded if a hearing is commenced within the 15-day period.

24.7( 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

24.71( 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 $15,000, and in the case of a person other than an individual, not more than $75,000, if the Tribunal

(a) determines that the person has violated or failed to comply with this Act or the regulations, and

(b) is of the opinion that it is in the public interest to make the order.

24.71( 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.

Directors and officers

24.8 If a person other than an individual violates or has not complied with this Act or the regulations, a director or officer of the person who authorized, permitted or acquiesced in the violation or non-compliance shall be deemed also to have violated or not complied with this Act or the regulations, whether or not any proceeding has been commenced against the person under this Act or the regulations or any order has been made against the person under section 24.7.

Resolution of administrative proceedings

24.81( 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 Act or the regulations 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 the Director, as the case may be, or

24.81( 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

24.9 No proceeding under this Act or the regulations shall be commenced more than six years after the date of the occurrence of the last event on which the proceeding is based.

5( 18) The heading “Enforcement” preceding section 25 of the Act is repealed.

5( 19) Section 25 of the Act is repealed.

5( 20) The heading “Inspection and removal of records” preceding section 26 of the Act is repealed.

5( 21) Section 26 of the Act is repealed.

5( 22) The Act is amended by adding before section 27 the following:

MISCELLANEOUS AND GENERAL

Conflict with the Right to Information and Protection of Privacy Act

26.1 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.

5( 23) Section 28 of the Act is amended by adding after subsection (3) the following:

28( 4) The Director shall not refuse to issue a licence or suspend or cancel a licence under this section without giving the person applying for the licence or the holder of the licence an opportunity to be heard.

5( 24) The heading “Offences and penalties” preceding section 33 of the Act is repealed.

5( 25) Section 33 of the Act is repealed.

5( 26) The heading “Limitation period for prosecution” preceding section 34 of the Act is repealed.

5( 27) Section 34 of the Act is repealed.

5( 28) Section 36 of the Act is amended

(a) in paragraph (d) by striking out “conditions, terms and restrictions” and substituting “terms and conditions”;

(b) by adding after paragraph (f) the following:

(f.1) requiring, for the purposes of subsection 24.1(2), that certain books, records or documents be kept;

(f.2) authorizing disclosures for the purposes of subsection 24.51(2);

(f.3) prescribing circumstances, fees and expenses for the purposes of subsection 24.12(8);

5( 29) Schedule A of the Act is repealed and the following is substituted:

SCHEDULE A

Number of provision

4(1)
4(5)(a)
4(5)(b)
4(6)(a)
4(10)
13
14
15
16(3)
19(1)
24(1)(a)
24.1(2)
24.1(3)
24.1(4)
24.1(5)(a)
24.1(5)(b)
24.11(1)
24.21
24.22(1)
24.32(5)
24.61
24.7(3)
27
28(1)

Financial and Consumer Services Commission Act

6( 1) Subsection 21(6) of the Financial and Consumer Services Commission Act, chapter 30 of the Acts of New Brunswick, 2013, is repealed and the following is substituted:

21( 6) For the purposes of subsection (2), amounts disgorged to the Commission under any of the following statutory provisions shall not be used for the normal operating expenditures of the Commission and shall be used only in accordance with the rules made under paragraph 59(1)(b.1) or the regulations or rules made under the statute in question:

(a) paragraph 9.7(1)(i) of the Collection Agencies Act;

(b) paragraph 59.4(1)(h) of the Co-operative Associations Act;

(d) paragraph 24.7(1)(i) of the Direct Sellers Act;

(e) paragraph 392(1)(i) of the Insurance Act;

(f) paragraph 75(1)(i) of the Mortgage Brokers Act;

(g) paragraph 78.71(1)(h) of the Pension Benefits Act;

(h) paragraph 30.7(1)(i) of the Pre-arranged Funeral Services Act;

(i) paragraph 43.7(1)(i) of the Real Estate Agents Act;

(j) paragraph 184(1)(p) or 187(4)(o) of the Securities Act.

6( 2) Paragraph 44(1)(b) of the Act is repealed and the following is substituted:

(b) is of the opinion that the person has not acted in the public interest.

6( 3) Subsection 59(1) of the Act is amended by adding after paragraph (b) the following:

(b.1) respecting the administration and distribution of amounts disgorged to the Commission under any provision of financial and consumer services legislation;

Insurance Act

7( 1) Section 1 of the Insurance Act, chapter I-12 of the Revised Statutes, 1973, is amended by adding the following definitions in alphabetical order:

“compliance officer” means a person appointed as a compliance officer under section 373; (agent de conformité)

“investigator” means a person appointed as an investigator under section 378; (enquêteur)

“regulated activity” means any activity governed by this Act or the regulations; (activité réglementée)

7( 2) Subsection 7(2) of the Act is repealed.

7( 3) Subsection 21(2.1) of the Act is repealed.

7( 4) Subsection 24(2) of the Act is repealed.

7( 5) Subsection 29(2) of the Act is repealed.

7( 6) The heading “PENALTIES” preceding section 93 of the Act is repealed.

7( 7) Section 93 of the Act is repealed.

7( 8) Paragraph 95(b.41) of the Act is repealed.

7( 9) Section 120.2 of the Act is amended by striking out “An insurer” and substituting “Despite section 386, an insurer”.

7( 10) Subsection 267.7(2) of the Act is repealed.

7( 11) Section 352 of the Act is amended by adding after subsection (9) the following:

352( 9.01) In a case where no advisory board is nominated under subsection (9), the decision of the Superintendent made under subsection (8) after he or she has held a hearing may be appealed to the Tribunal.

7( 12) Section 364 of the Act is amended by adding after section (1) the following:

364( 1.1) Despite anything else in this section, if the licence of an agent or a broker is suspended or cancelled under this Act, the Superintendent may order the institution in which the agent or broker’s trust account is held to refrain from paying out all or any part of the money in the account for the period of the suspension or cancellation.

7( 13) Section 367 of the Act is repealed.

7( 14) Section 369.1 of the Act is amended by striking out “sections 369.1 to 369.5” and substituting “sections 369.1 to 369.4”;

7( 15) Section 369.5 of the Act is repealed.

7( 16) The Act is amended by adding after section 370 the following:

Conflict with the Right to Information and Protection of Privacy Act

370.1 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.

7( 17) The Act is amended by adding after section 371 the following:

PART XVI

COMPLIANCE REVIEWS

Records

372( 1) The following definition applies in this section.

“regulatory authority” means a person empowered by the laws of a jurisdiction to regulate the activities of insurers, agents, brokers, adjusters or damage appraisers. (organisme de réglementation)

372( 2) All books, accounts, records and documents required under this Act or the regulations to be kept by an insurer, an agent, a broker, an adjuster or a damage appraiser shall be kept by the insurer, agent, broker, adjuster or damage appraiser at a safe location and in a durable form.

372( 3) The insurer, agent, broker, adjuster or damage appraiser shall keep client information for a minimum period of seven years after the latest of the following dates:

(a) the final closing of the client record;

(b) the date the last service was rendered to the client; and

372( 4) An insurer, an agent, a broker, an adjuster or a damage appraiser shall deliver to the Superintendent, or to any other employee of the Financial and Consumer Services Commission, at any time that the Superintendent or other employee requires

(a) any of the books, accounts, records and documents that are required to be kept by the insurer, agent, broker, adjuster or damage appraiser under this Act or the regulations, and

(b) any filings, reports or other communications made to any other regulatory authority.

Compliance review

373( 1) Without limiting any other compliance powers under this Act or the regulations, the Financial and Consumer Services Commission may appoint in writing a person as a compliance officer for the purpose of ensuring compliance with this Act and the regulations.

373( 2) The Financial and Consumer Services Commission shall issue to every compliance officer a certificate of appointment and every compliance officer, in the execution of his or her duties under this Act or the regulations, shall produce his or her certificate of appointment on request.

373( 3) For the purpose of determining whether this Act and the regulations are being complied with, a compliance officer, in carrying out a compliance review, may

(a) enter the premises of any insurer, agent, broker, adjuster or damage appraiser during normal business hours,

(b) require an insurer, an agent, a broker, an adjuster or a damage appraiser or an officer or employee of any of them to produce for inspection, examination, auditing or copying any books, accounts, records or documents relating to the business or affairs of the insurer, agent, broker, adjuster or damage appraiser,

(c) inspect, examine, audit or copy the books, accounts, records or documents relating to the business or affairs of an insurer, an agent, a broker, an adjuster or a damage appraiser, and

(d) question an insurer, an agent, a broker, an adjuster or a damage appraiser or an officer or employee of any of them in relation to the business or affairs of the insurer, agent, broker, adjuster or damage appraiser.

373( 4) In carrying out a compliance review, a compliance officer may

(a) use a data processing system at the premises where the books, accounts, records or documents are kept,

(b) reproduce any book, account, record or document, and

(c) use any copying equipment at the premises where the books, accounts, records or documents are kept to make copies of any book, account, record or document.

373( 5) A compliance officer may carry out a compliance review within or outside the Province.

373( 6) A compliance officer shall not enter a private dwelling under subsection (3) unless the compliance officer has the consent of the occupier or has obtained an entry warrant under the Entry Warrants Act.

373( 7) Before or after attempting to enter or to have access to any premises, a compliance officer may apply for an entry warrant under the Entry Warrants Act.

373( 8) The Financial and Consumer Services Commission may, in circumstances prescribed by regulation, require an insurer, an agent, a broker, an adjuster or a damage appraiser in respect of which a compliance review was carried out to pay the Financial and Consumer Services Commission any fee prescribed by regulation and to reimburse the Financial and Consumer Services Commission for any expenses prescribed by regulation.

373( 9) The Lieutenant-Governor in Council may make regulations prescribing circumstances, fees and expenses for the purposes of subsection (8).

Removal of documents

374( 1) A compliance officer who removes books, accounts, records or documents to make a copy or extract of them or any part of them shall give a receipt to the occupier of the premises for the books, accounts, records or documents removed and return the books, accounts, records or documents as soon as possible after the making of copies or extracts.

374( 2) A copy or extract of any book, account, record or document related to a compliance review and purporting to be certified by a compliance officer is admissible in evidence in any action, proceeding or prosecution and is proof, in the absence of evidence to the contrary, of the original without proof of the appointment, authority or signature of the person purporting to have certified the copy or extract.

Misleading statements

375 No person shall knowingly make a false or misleading statement, either orally or in writing, to a compliance officer while the compliance officer is engaged in carrying out his or her duties under this Act or the regulations.

Obstruction

376( 1) No person shall obstruct or interfere with a compliance officer who is carrying out or attempting to carry out a compliance review under this Part, or withhold, destroy, conceal, alter or refuse to produce any information or thing reasonably required by a compliance officer for the purposes of the compliance review.

376( 2) A refusal of consent to enter a private dwelling is not and shall not be considered to be interfering with or obstructing within the meaning of subsection (1), except if an entry warrant has been obtained.

PART XVII

INVESTIGATIONS

Provision of information to Superintendent

377( 1) The Superintendent may make an order under subsection (2)

(a) for the administration of this Act or the regulations, or

(b) to assist in the administration of similar legislation of another jurisdiction.

377( 2) By an order applicable generally or to one or more persons named or otherwise described in the order, the Superintendent may require any of the following persons to provide information or to produce books, accounts, records or documents or classes of books, accounts, records or documents specified or otherwise described in the order within the time or at the intervals specified in the order:

(a) the holder of a licence issued under this Act;

(b) a former holder of a licence issued under this Act; or

(c) any person that does not hold a licence under this Act and that is, or the Superintendent has reason to suspect is, carrying out a regulated activity.

377( 3) The Superintendent may require that the authenticity, accuracy or completeness of information provided or of a book, account, record or document or a class of books, accounts, records or documents produced pursuant to an order under subsection (2) be verified by affidavit.

377( 4) The Superintendent may require that the information provided or that the books, accounts, records or documents or classes of books, accounts, records or documents produced pursuant to an order made under subsection (2) be delivered in electronic form, if the information or the books, accounts, records or documents or classes of books, accounts, records or documents are already available in that form.

Investigation order

378( 1) Without limiting any other investigative powers under this Act or the regulations, the Financial and Consumer Services Commission may, by order, appoint a person as an investigator to make any investigation that the Financial and Consumer Services Commission considers expedient

(a) for the administration of this Act or the regulations, or

(b) to assist in the administration of similar legislation of another jurisdiction.

378( 2) In its order, the Financial and Consumer Services Commission shall specify the scope of an investigation to be carried out under subsection (1).

Powers of investigator

379( 1) An investigator may, with respect to the person who is the subject of the investigation, investigate, inspect and examine

(a) the business or affairs of that person,

(b) any books, accounts, 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 representative of that person.

379( 2) For the purposes of an investigation under this Part, an investigator may inspect and examine any book, account, record, document or thing, whether in possession or control of the person in respect of whom the investigation is ordered or any other person.

379( 3) An investigator making an investigation under this Part 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, account, 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, account, record, document or thing referred to in paragraph (a) for inspection or examination, and

(c) on giving a receipt, remove the book, account, record, document or thing inspected or examined under paragraph (a) or (b) for the purpose of further inspection or examination.

379( 4) Inspection or examination under this section shall be completed as soon as possible and the books, accounts, records, documents or things shall be returned promptly to the person who produced them.

379( 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, account, record, document or thing reasonably required under subsection (3) by an investigator.

Power to compel evidence

380( 1) An investigator making an investigation under this Part 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, accounts, records, documents and things or classes of books, accounts, records, documents and things as the court has for the trial of civil actions.

380( 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, accounts, records, documents and things or classes of books, accounts, 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.

380( 3) A person giving evidence at an investigation conducted under this section may be represented by legal counsel.

380( 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

381 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

382( 1) On request to the investigator by the person who, at the time of the seizure, was in lawful possession of books, accounts, records, documents or things seized under this Part, the books, accounts, 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.

382( 2) If books, accounts, records, documents or things are seized under this Part and the matter for which the books, accounts, records, documents or things were seized is concluded, the investigator shall return those books, accounts, 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.

382( 3) If books, accounts, records, documents or things are seized under this Part and the person who was in lawful possession of the books, accounts, records, documents or things at the time of the seizure alleges that the books, accounts, 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, accounts, records, documents or things.

382( 4) On a motion under subsection (3), the court shall order the return of any books, accounts, 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, accounts, records, documents or things at the time of the seizure.

Report of investigation

383( 1) If an investigation has been made under this Part, the investigator shall, at the request of the Financial and Consumer Services Commission, provide a report of the investigation to the Financial and Consumer Services Commission or any transcripts of evidence or any material or other things in the investigator’s possession relating to the investigation.

383( 2) A report that is provided to the Financial and Consumer Services Commission under this section is privileged and is inadmissible in evidence in any action or proceeding.

Prohibition against disclosure

384( 1) For the purpose of protecting the integrity of an investigation under this Part, the Financial and Consumer Services 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;

(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.

384( 2) An order under subsection (1) does not apply to disclosures authorized by the regulations or by the Superintendent in writing.

384( 3) An investigator making an investigation under this Part may make, or authorize the making of, any disclosure of information that may be required for the effectual conduct of the investigation.

384( 4) The Lieutenant-Governor in Council may make regulations authorizing disclosures for the purposes of subsection (2).

Non-compellability

385 None of the following persons is 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 Part:

(a) an investigator;

(b) the Financial and Consumer Services Commission;

(d) an employee of the Financial and Consumer Services Commission;

(e) a member of the Tribunal; and

(f) a person engaged by the Financial and Consumer Services Commission under section 18 of the Financial and Consumer Services Commission Act.

PART XVIII

ENFORCEMENT

Offences generally

386( 1) A person who does any of the following commits an offence, and is liable on conviction, for each offence, if a director or officer of a person, to a fine of not more than $100,000 or to imprisonment for a term of not more than one year, or to both, if an individual who is not a director or officer of a person, to a fine of not more than $250,000 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 to or filed with the Financial and Consumer Services Commission, the Superintendent, a compliance officer, an investigator or any person acting under the authority of the Financial and Consumer Services Commission or the Superintendent 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;

(b) withholds, destroys, conceals, alters or refuses to produce any information or thing reasonably required for the purposes of an administrative proceeding under this Act or the regulations;

(d) violates or fails to comply with a decision, ruling, order, temporary order or direction of the Financial and Consumer Services Commission, the Superintendent or the Tribunal made or given under this Act or the regulations;

(e) violates or fails to comply with a written undertaking made by that person to the Financial and Consumer Services Commission, the Superintendent or the Tribunal under this Act or the regulations; or

(f) violates or fails to comply with any provision of the regulations.

386( 2) Despite subsection (1), on a second or subsequent conviction for an offence under this Act, a person is liable, if a director or officer of a person, to a fine of not more than $200,000 or to imprisonment for a term of not more than one year, or to both, if an individual who is not a director or officer of a person, to a fine of not more than $500,000 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 $500,000.

386( 3) Without limiting the availability of other defences, no person commits an offence under paragraph (1)(a) if

Burden of proof of licence

387 In any prosecution under this Act, if it appears that the defendant has done any act or omitted to do any act and that act or omission is one in respect of which the defendant would be liable to some penalty under this Act or the regulations unless the defendant has been duly licensed, it is incumbent upon the defendant to prove that the defendant is duly licensed.

Misleading or untrue statements

388 In carrying on a regulated activity, no person shall make a statement that the person knows or reasonably ought to know 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.

Interim preservation of property

389( 1) On the application of the Financial and Consumer Services Commission, the Tribunal may make one or more of the following orders if the Tribunal considers it expedient for the administration of this Act or the regulations or to assist in the administration of similar legislation of another jurisdiction:

(a) an order directing a person having on deposit or under control or for safekeeping any funds, securities or property to retain the funds, securities or property and to hold them;

(b) an order directing a person to refrain from withdrawing the person’s funds, securities or property from any other person having any of them on deposit or under control or for safekeeping; or

(c) an order directing a person to hold all funds, securities or property of clients or others in the person’s possession or control in trust for any interim receiver, custodian, trustee, receiver, receiver and manager or liquidator appointed under the Business Corporations Act, the Companies Act, the Judicature Act, this Act, the Bankruptcy and Insolvency Act (Canada), the Winding-up and Restructuring Act (Canada) or any other Act of the Legislature or of Canada.

389( 2) An order under subsection (1) that names a financial institution shall apply only to the branches of the financial institution identified in the order.

389( 3) An order under subsection (1) is effective for seven days after its making, but the Financial and Consumer Services Commission may apply to the court to continue the order or for any other order that the court considers appropriate.

389( 4) An order under subsection (1) may be made ex parte but, in that event, copies of the order shall be sent without delay by any means that the Tribunal determines to all persons named in the order.

389( 5) A person in receipt of an order under subsection (1) who is in doubt as to the application of the order to any funds, securities or property or as to a claim being made to that person by any person not named in the order may apply to the Tribunal for direction or clarification.

389( 6) The Tribunal, on the application of the Financial and Consumer Services Commission or of a person directly affected by the order, may revoke an order under subsection (1) or permit the release of any funds, securities or property in respect of which the order was made.

389( 7) A notice of an order under subsection (1) may be registered or recorded against the lands or claims identified in the order by submitting the notice to the appropriate registry office established under the Registry Act or to the appropriate land titles office established under the Land Titles Act.

389( 8) The Tribunal may order a notice submitted under subsection (7) to be revoked or modified and, if an order is made, the Financial and Consumer Services Commission shall submit a copy of the revocation or modification to the appropriate registry office or land titles office.

389( 9) On submission of a notice under subsection (7) or a copy of a written revocation or modification under subsection (8), the notice or the copy of the revocation or modification shall be registered or recorded in the registry office or land titles office, as the case may be, by the registrar and has the same effect as the registration or recording of a certificate of pending litigation.

Superintendent may restrict licences

390( 1) The Superintendent may at any time restrict a licence issued under this Act or the regulations by imposing any terms and conditions that he or she considers appropriate on the licence.

390( 2) The holder of a licence shall comply with the terms and conditions imposed on the licence by the Superintendent.

390( 3) The Superintendent shall not impose terms and conditions on a licence without giving the applicant for the licence or the holder of the licence an opportunity to be heard.

Suspension or cancellation of licences

391 If an insurer violates any prohibition or fails to comply with the requirements of or commits an offence under this Act or the regulations, the Superintendent may suspend or cancel the licence of the insurer.

Orders in the public interest

392( 1) On the application of the Financial and Consumer Services 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 this Act or the regulations do not apply to a person permanently or for any period specified in the order;

(d) an order that a person submit to a review of the person’s practices and procedures relating to regulated activities and institute any changes directed by the Tribunal;

(e) if the Tribunal is satisfied that this Act or the regulations 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 violating or comply with, and that the directors and officers of the person cause the person to cease violating or to comply with, this Act and the regulations;

(i) if a person has not complied with this Act or the regulations, an order requiring the person to disgorge to the Financial and Consumer Services Commission any amounts obtained as a result of the non-compliance.

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

392( 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.

392( 4) Unless the parties and the Tribunal consent, no order shall be made under this section without a hearing.

392( 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).

392( 6) The temporary order shall take effect immediately and shall expire on the fifteenth day after its making unless extended by the Tribunal.

392( 7) The Tribunal may extend a temporary order until the hearing is concluded if a hearing is commenced within the 15-day period.

392( 8) The Financial and Consumer Services 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

393( 1) On the application of the Financial and Consumer Services 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 $100,000, and in the case of a person other than an individual, not more than $500,000, if the Tribunal

(a) determines that the person has violated or failed to comply with this Act or the regulations, and

(b) is of the opinion that it is in the public interest to make the order.

393( 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 Financial and Consumer Services Commission or the Superintendent related to the same matter.

Directors and officers

394 If a person other than an individual violates or has not complied with this Act or the regulations, a director or officer of the person who authorized, permitted or acquiesced in the violation or non-compliance shall be deemed also to have violated or not complied with this Act or the regulations, whether or not any proceeding has been commenced against the person under this Act or the regulations or any order has been made against the person under section 392.

Resolution of administrative proceedings

395( 1) Despite any other provision of this Act or the regulations, an administrative proceeding conducted by the Financial and Consumer Services Commission, the Tribunal or the Superintendent under this Act or the regulations may be disposed of by

(a) an agreement approved by the Financial and Consumer Services Commission, the Tribunal or the Superintendent, as the case may be,

(b) a written undertaking made by a person to the Financial and Consumer Services Commission, the Tribunal or the Superintendent that has been accepted by the Financial and Consumer Services Commission, the Tribunal or the Superintendent, as the case may be, or

(c) a decision of the Financial and Consumer Services Commission, the Tribunal or the Superintendent, as the case may be, made without a hearing or without compliance with a requirement of this Act or the regulations, if the parties have waived the hearing or compliance with the requirement.

395( 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 Financial and Consumer Services Commission, the Tribunal or the Superintendent under any other provision of this Act or under the regulations.

Limitation period

396 Unless otherwise provided in this Act, no proceeding under this Act or the regulations shall be commenced more than six years after the date of the occurrence of the last event on which the proceeding is based.

7( 18) Schedule A of the Act is repealed and the following is substituted:

SCHEDULE A

Number of provision

13
14
15
16(3)
17(2)
17.1
18(7)
19.7(1)
20.1(3)
20.2(1)
20.2(2)
21(2)
21(3)
21(5)
27(2)
28(1)
28(2)
33(4)
42(2)
42(3)
42(6)
66(1)(d)
66(2)
72
73
74(1)
74(3)
74(4)
75(1)
76
77
79(1)
79(4)
80
81
82(5)
83
85(1)
85(2)
85(6)
87(1)
87(3)
99
100(1)
103(1)
113(2)
113(3)
115(1)
116(1)
116(2)
117(3)
118
121(2)
121.3(5)
121.4
121.6
121.8(1)
121.8(2)
121.8(3)
121.8(4)
121.8(9)
121.9(1)
127(1)
135(1)
135(4)
136(2)
137
138
182(3)
189
190(2)
191
192(1)
193
194
215(3)
221
226(1)
226(8)
227
228(1)
228(2)
228(3)
228(5)
229.1
230.1(1)
242.8(3)
242.9(4)
258(2)
267.2(1.1)
267.3(1)
282(1)
284(1)
284(2)
290(1)
290(2)
291(3)
293(4)
300
306(2)
307
326(1)
326(4)
326.2(4)
326.4
326.5
335
336(1)
336(2)
336(5)
336(6)
338
339(2)
351
352(7)
355(2)
355(3)
355(4)
357
359(2)
359(3)
360(4)
360(6)
362
364(1)
364(2)
364(3)
364(4)
364(5)
364.1
365
368(1)
368(2)
368(4)
368(5)
369(1)
372(2)
372(3)
372(4)(a)
372(4)(b)
375
376(1)
379(5)
388
390(2)
392(3)

Regulation under the Insurance Act

8( 1) Subsection 14(2) of New Brunswick Regulation 2009-52 under the Insurance Act is amended by striking out “under section 367 of the Act” and substituting “under the Act”.

8( 2) Section 19 of the Regulation is amended

(a) in subsection (3) by striking out “under section 367 of the Act” and substituting “under the Act”;

(b) in subsection (4) by striking out “under section 367 of the Act” and substituting “under the Act”.

8( 3) Section 24 of the Regulation is amended

(a) in subsection (1) by striking out “under section 367 of the Act” and substituting “under the Act”;

(b) in subsection (3) by striking out “under section 367 of the Act” and substituting “under the Act”.

Mortgage Brokers Act

9( 1) Subsection 37(2) of the Mortgage Brokers Act, chapter 41 of the Acts of New Brunswick, 2014, is amended by striking out “at a location approved by the Director” and substituting “at a safe location and in a durable form”.

9( 2) Section 48 of the Act is amended by adding after subsection (4) the following:

48( 5) Despite anything else in this Division, if a mortgage broker’s licence or mortgage administrator’s licence is cancelled under this Act, the Director may order the financial institution in which the mortgage broker or mortgage administrator holds a trust account to refrain from paying out all or any part of the money in the account for the period of the suspension or cancellation.

9( 3) Section 55 of the French version of the Act is amended

(a) in subsection (1) by striking out “une brochure” and substituting “une brochure, un dépliant”;

(b) in subsection (2) by striking out “une brochure” and substituting “une brochure, un dépliant”.

9( 4) Paragraph 62(1)b) of the French version of the Act is amended by striking out “d’une législation similaire édictée” and substituting “de dispositions législatives similaires édictées”.

9( 5) Paragraph 63(1)b) of the French version of the Act is amended by striking out “d’une législation similaire édictée” and substituting “de dispositions législatives similaires édictées”.

9( 6) Paragraph 64(1)(a) of the Act is amended by striking out “affairs” and substituting “business or affairs”.

9( 7) Subsection 74(1) of the French version of the Act is amended in the portion preceding paragraph a) by striking out “d’une législation similaire édictée” and substituting “de dispositions législatives similaires édictées”.

9( 8) Subsection 86(1) of the French version of the Act is amended by striking out “d’une législation similaire édictée” and substituting “de dispositions législatives similaires édictées”.

Nursing Homes Pension Plans Act

10 Subsection 17(2) of the Nursing Homes Pension Plans Act, chapter N-12 of the Acts of New Brunswick, 2008, is amended

(a) by repealing paragraph (a) and substituting the following:

(a) the definition “regulated activity” in section 1;

(b) by adding after paragraph (a) the following:

(a.1) 13(1)(c), (d) and (e);

(c.1) 28(3.1) and (5);

(d) in paragraph (h) by striking out “82(1),”;

(e) by adding after paragraph (h) the following:

(h.1) 78.1(2), 78.12(1), (2) and (3), 78.21, 78.22(1), 78.3(1), 78.31(1), 78.32(2) and (3), 78.4(1), 78.41, 78.42(1), (2) and (3), 78.5(1), 78.51, 78.52, 78.6(1), (2), (4) and (5), 78.61, 78.7(1), 78.71(1), 78.8(1), 78.81 and 78.9;

Pension Benefits Act

11( 1) Subsection 1(1) of the Pension Benefits Act, chapter P-5.1 of the Acts of New Brunswick, 1987, is amended by adding the following definitions in alphabetical order:

“compliance officer” means a person appointed as a compliance officer under section 78.12; (agent de conformité)

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

“investigator” means a person appointed as an investigator under section 78.31; (enquêteur)

“regulated activity” means any activity governed by this Act or the regulations; (activité réglementée)

11( 2) Subsection 28(3.1) of the Act is amended by striking out “this section is inconsistent with or in conflict with a provision of” and “this section prevails” and substituting “a provision of this Act is inconsistent or in conflict with a provision of” and “the provision of this Act prevails” respectively.

11( 3) Subsection 69(9) of the Act is amended by striking out “The Court of Queen’s Bench of New Brunswick” and substituting “the Court of Queen’s Bench”.

11( 4) Subsection 71(2) of the Act is amended by striking out “The Court of Queen’s Bench of New Brunswick” and substituting “the Court of Queen’s Bench”.

11( 5) Subsection 78(1) of the Act is amended by striking out “The Court of Queen’s Bench of New Brunswick” and substituting “the Court of Queen’s Bench”.

11( 6) The Act is amended by adding after section 78 the following:

ADVERTISING AND COMPLIANCE REVIEWS

Delivery of records

78.1( 1) The following definition applies in this section.

“regulatory authority” means a person empowered by the laws of a jurisdiction to regulate pension plans, pension funds, retirement savings arrangements prescribed for the purposes of subparagraph 36(1)(a)(ii) or paragraph 99.1(2)(b) or any activities related to the administration of those plans, funds or arrangements. (organisme de réglementation)

78.1( 2) Any person shall deliver to the Superintendent, or to any other employee of the Financial and Consumer Services Commission, at any time that the Superintendent or other employee requires

(a) any of the records that are required to be kept by the person under this Act or the regulations, and

(b) any filings, reports or other communications made to any other regulatory authority.

False or misleading advertisement

78.11( 1) No person shall make any false, misleading or deceptive statements in any advertisement, circular, pamphlet or similar material prepared or used in respect of a regulated activity.

78.11( 2) If, in the opinion of the Superintendent, a person has made a false, misleading or deceptive statement in any advertisement, circular, pamphlet or similar material referred to in subsection (1), the Superintendent may order the person to stop using that material immediately.

Compliance review

78.12( 1) The Financial and Consumer Services Commission may appoint in writing a person as a compliance officer for the purpose of ensuring compliance with this Act and the regulations.

78.12( 2) The Financial and Consumer Services Commission shall issue to every compliance officer a certificate of appointment and every compliance officer, in the execution of his or her duties under this Act or the regulations, shall produce his or her certificate of appointment on request.

78.12( 3) For the purpose of determining whether this Act and the regulations are being complied with, the Superintendent or a compliance officer, in carrying out a compliance review, may

(a) enter, during normal business hours, any business premises where the Superintendent or compliance officer has reasonable grounds to believe that books, records, documents or things are kept that relate to a pension plan, a pension fund or a retirement savings arrangement prescribed for the purposes of subparagraph 36(1)(a)(ii) or paragraph 99.1(2)(b),

(b) make any inspections, examinations, audits or inquiries and may require the production of any book, record, document or thing related to a pension plan, a pension fund or a retirement savings arrangement prescribed for the purposes of subparagraph 36(1)(a)(ii) or paragraph 99.1(2)(b),

(c) make, take and remove or require the making, taking and removal of copies or extracts related to an inspection, examination, audit or inquiry in relation to a pension plan, a pension fund or a retirement savings arrangement prescribed for the purposes of subparagraph 36(1)(a)(ii) or paragraph 99.1(2)(b), and

(d) on giving a receipt, remove any books, records, documents or things related to the subject matter of an inspection, examination, audit or inquiry for the purpose of making copies, but the copying shall be carried out as soon as possible and the books, records, documents and things shall be returned immediately after the copying is completed.

78.12( 4) In carrying out a compliance review, the Superintendent or a compliance officer may

(a) use a data processing system at the business premises,

(b) reproduce any book, record or document, and

78.12( 5) The Superintendent or a compliance officer may carry out a compliance review within or outside the Province.

78.12( 6) The Superintendent or a compliance officer shall not enter a private dwelling under subsection (3) unless the compliance officer or Superintendent has the consent of the occupier or has obtained an entry warrant under the Entry Warrants Act.

78.12( 7) Before or after attempting to enter or to have access to any business premises, the Superintendent or a compliance officer may apply for an entry warrant under the Entry Warrants Act.

78.12( 8) The Financial and Consumer Services Commission may, in prescribed circumstances, require a person in respect of whom a compliance review was carried out to pay the Financial and Consumer Services Commission any prescribed fee and to reimburse the Financial and Consumer Services Commission for any prescribed expenses.

Removal of documents

78.2 A copy or extract of any book, record or document related to a compliance review and purporting to be certified by the Superintendent or a compliance officer is admissible in evidence in any action, proceeding or prosecution and is proof, in the absence of evidence to the contrary, of the original without proof of the appointment, authority or signature of the person purporting to have certified the copy or extract.

Misleading statements

78.21 No person shall knowingly make a false or misleading statement, either orally or in writing, to the Superintendent or a compliance officer while the Superintendent or compliance officer is engaged in carrying out his or her duties under this Act or the regulations.

Obstruction

78.22( 1) No person shall obstruct or interfere with the Superintendent or a compliance officer who is carrying out or attempting to carry out a compliance review under this Act, or withhold, destroy, conceal, alter or refuse to produce any information or thing reasonably required by the Superintendent or a compliance officer for the purposes of the compliance review.

78.22( 2) A refusal of consent to enter a private dwelling is not and shall not be considered to be interfering with or obstructing within the meaning of subsection (1), except if an entry warrant has been obtained.

INVESTIGATIONS

Provision of information to Superintendent

78.3( 1) The Superintendent may make an order under subsection (2)

(a) for the administration of this Act or the regulations, or

(b) to assist in the administration of similar legislation of another jurisdiction.

78.3( 2) By an order applicable generally or to one or more persons named or otherwise described in the order, the Superintendent 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) an administrator;

(b) a former administrator;

(c) a financial institution acting as a trustee for a retirement savings arrangement prescribed for the purposes of subparagraph 36(1)(a)(ii) or paragraph 99.1(2)(b);

(d) a financial institution that has previously acted as a trustee for a retirement savings arrangement prescribed for the purposes of subparagraph 36(1)(a)(ii) or paragraph 99.1(2)(b);

(e) an employer; or

(f) a former employer.

78.3( 3) The Superintendent may require that the authenticity, accuracy or completeness of information provided or of a book, record or document or a class of books, records or documents produced pursuant to an order under subsection (2) be verified by affidavit.

78.3( 4) The Superintendent may require that the information 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

78.31( 1) The Financial and Consumer Services Commission may, by order, appoint a person as an investigator to make any investigation that the Financial and Consumer Services Commission considers expedient

(a) for the administration of this Act or the regulations, or

(b) to assist in the administration of similar legislation of another jurisdiction.

78.31( 2) In its order, the Financial and Consumer Services Commission shall specify the scope of an investigation to be carried out under subsection (1).

Powers of investigator

78.32( 1) An investigator may, with respect to the person who is the subject of the investigation, investigate, inspect and examine

(a) the business or 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.

78.32( 2) For the purposes of an investigation under this Act, an investigator may inspect and examine any book, record, document or thing, whether in possession or control of the person in respect of whom the investigation is ordered or any other person.

78.32( 3) An investigator making an investigation under this Act may, on production of the order appointing him or her,

(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.

78.32( 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.

78.32( 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

78.4( 1) An investigator making an investigation under this Act 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 of Queen’s Bench has for the trial of civil actions.

78.4( 2) On the application of an investigator to the Court of Queen’s Bench, 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 of Queen’s Bench.

78.4( 3) A person giving evidence at an investigation conducted under this section may be represented by legal counsel.

78.4( 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

78.41 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

78.42( 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 Act, 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.

78.42( 2) If books, records, documents or things are seized under this Act 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.

78.42( 3) If books, records, documents or things are seized under this Act 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 of Queen’s Bench for the return of the books, records, documents or things.

78.42( 4) On a motion under subsection (3), the Court of Queen’s Bench 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

78.5( 1) If an investigation has been made under this Act, the investigator shall, at the request of the Financial and Consumer Services Commission, provide to the Financial and Consumer Services Commission a report of the investigation or any transcripts of evidence or any material or other things in the investigator’s possession relating to the investigation.

78.5( 2) A report that is provided to the Financial and Consumer Services Commission under this section is privileged and is inadmissible in evidence in any action or proceeding.

Prohibition against disclosure

78.51( 1) For the purpose of protecting the integrity of an investigation under this Act, the Financial and Consumer Services 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;

(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.

78.51( 2) An order under subsection (1) does not apply to disclosures authorized by the regulations or by the Superintendent in writing.

78.51( 3) An investigator making an investigation under this Act may make, or authorize the making of, any disclosure of information that may be required for the effectual conduct of the investigation.

Non-compellability

78.52 None of the following persons is 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 Act:

(a) an investigator;

(b) the Financial and Consumer Services Commission;

(d) an employee of the Financial and Consumer Services Commission;

(e) a member of the Tribunal; and

(f) a person engaged by the Financial and Consumer Services Commission under section 18 of the Financial and Consumer Services Commission Act.

ENFORCEMENT

Offences generally

78.6( 1) A person who does any of the following commits an offence, and is liable on conviction, for each offence, if a director on the board of directors of a person or an officer of a person, to a fine of not more than $100,000 or to imprisonment for a term of not more than one year, or to both, if an individual who is not a director on the board of directors of a person or an officer of a person, to a fine of not more than $250,000 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:

(c) withholds, destroys, conceals, alters or refuses to produce any information or thing reasonably required for the purposes of an administrative proceeding under this Act or the regulations;

(d) violates or fails to comply with a provision of this Act that is listed in Schedule A;

(e) violates or fails to comply with a decision, ruling, order, temporary order or direction of the Financial and Consumer Services Commission, the Superintendent or the Tribunal made or given under this Act or the regulations;

(f) violates or fails to comply with a written undertaking made by that person to the Financial and Consumer Services Commission or the Tribunal under this Act or the regulations; or

(g) violates or fails to comply with any provision of the regulations.

78.6( 2) Despite subsection (1), on a second or subsequent conviction for an offence under this Act, a person is liable, if a director on the board of directors of a person or an officer of a person, to a fine of not more than $200,000 or to imprisonment for a term of not more than one year, or to both, if an individual who is not a director on the board of directors of a person or an officer of a person, to a fine of not more than $500,000 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 $500,000.

78.6( 3) Without limiting the availability of other defences, no person commits an offence under paragraph (1)(a) or (b) if

78.6( 4) As well as imposing a fine, the court may stipulate that an additional amount be paid into court for the purpose of satisfying in whole or in part an amount payable by the convicted person under a provision of this Act or the regulations or under an order of the Tribunal or the Labour and Employment Board and the court shall, upon receipt of the amount, pay the amount to the appropriate person.

78.6( 5) Except with respect to a payment made under subsection (4), a conviction for an offence under this Act does not relieve the convicted person of the obligation to comply with an order of the Tribunal or the Labour and Employment Board or to pay any amount established by the Tribunal or the Labour and Employment Board as being due and owing under this Act.

Prosecution of employer

78.61 If an employer is prosecuted under this Act, the act or omission of an employee of the employer shall be deemed to be the act or omission of the employer unless the employer establishes that the act or omission occurred despite the fact the employer, and each person exercising supervisory responsibilities over the employee on behalf of the employer, took all reasonable care to avoid it.

Misleading or untrue statements

78.62 In carrying on a regulated activity, no person shall make a statement that the person knows or reasonably ought to know 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.

Interim preservation of property

78.7( 1) On the application of the Financial and Consumer Services Commission, the Tribunal may make one or both of the following orders if the Tribunal considers it expedient for the administration of this Act or the regulations or to assist in the administration of similar legislation of another jurisdiction:

(a) an order directing a person having on deposit or under control or for safekeeping any funds, securities or property to retain the funds, securities or property and to hold them; or

(b) an order directing a person to refrain from withdrawing the person’s funds, securities or property from any other person having any of them on deposit or under control or for safekeeping.

78.7( 2) An order under subsection (1) that names a financial institution shall apply only to the branches of the financial institution identified in the order.

78.7( 3) An order under subsection (1) is effective for seven days after its making, but the Financial and Consumer Services Commission may apply to the Court of Queen’s Bench to continue the order or for any other order that the Court of Queen’s Bench considers appropriate.

78.7( 4) An order under subsection (1) may be made ex parte but, in that event, copies of the order shall be sent without delay by any means that the Tribunal determines to all persons named in the order.

78.7( 5) A person in receipt of an order under subsection (1) who is in doubt as to the application of the order to any funds, securities or property or as to a claim being made to that person by any person not named in the order may apply to the Tribunal for direction or clarification.

78.7( 6) The Tribunal, on the application of the Financial and Consumer Services Commission or of a person directly affected by the order, may revoke an order under subsection (1) or permit the release of any funds, securities or property in respect of which the order was made.

78.7( 7) A notice of an order under subsection (1) may be registered or recorded against the lands or claims identified in the order by submitting the notice to the appropriate registry office established under the Registry Act or to the appropriate land titles office established under the Land Titles Act.

78.7( 8) The Tribunal may order a notice submitted under subsection (7) to be revoked or modified and, if an order is made, the Financial and Consumer Services Commission shall submit a copy of the revocation or modification to the appropriate registry office or land titles office.

78.7( 9) On submission of a notice under subsection (7) or a copy of a written revocation or modification under subsection (8), the notice or the copy of the revocation or modification shall be registered or recorded in the registry office or land titles office, as the case may be, by the registrar and has the same effect as the registration or recording of a certificate of pending litigation.

Orders in the public interest

78.71( 1) On the application of the Financial and Consumer Services 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 any exemptions contained in this Act or the regulations do not apply to a person permanently or for any period specified in the order;

(b) an order that a person cease conducting all or any regulated activities;

(c) an order that a person submit to a review of the person’s practices and procedures relating to regulated activities and institute any changes directed by the Tribunal;

(d) if the Tribunal is satisfied that this Act or the regulations 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;

(e) an order that a person be reprimanded;

(f) 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;

(g) an order that a person cease violating or comply with, and that the directors on the board of directors of the person and the officers of the person cause the person to cease violating or to comply with, this Act and the regulations;

(h) if a person has not complied with this Act or the regulations, an order requiring the person to disgorge to the Financial and Consumer Services Commission any amounts obtained as a result of the non-compliance.

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

78.71( 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.

78.71( 4) Unless the parties and the Tribunal consent, no order shall be made under this section without a hearing.

78.71( 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) or (e).

78.71( 6) The temporary order shall take effect immediately and shall expire on the fifteenth day after its making unless extended by the Tribunal.

78.71( 7) The Tribunal may extend a temporary order until the hearing is concluded if a hearing is commenced within the 15-day period.

78.71( 8) The Financial and Consumer Services 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

78.8( 1) On the application of the Financial and Consumer Services 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 violated or failed to comply with this Act or the regulations, and

(b) is of the opinion that it is in the public interest to make the order.

78.8( 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 Financial and Consumer Services Commission or the Superintendent related to the same matter.

Directors on board of directors and officers

78.81 If a person other than an individual violates or has not complied with this Act or the regulations, a director on the board of directors of the person or an officer of the person who authorized, permitted or acquiesced in the violation or non-compliance shall be deemed also to have violated or not complied with this Act or the regulations, whether or not any proceeding has been commenced against the person under this Act or the regulations or any order has been made against the person under section 78.71.

Resolution of administrative proceedings

78.9( 1) Despite any other provision of this Act or the regulations, an administrative proceeding conducted by the Financial and Consumer Services Commission or the Tribunal under this Act or the regulations may be disposed of by

(a) an agreement approved by the Financial and Consumer Services Commission or the Tribunal, as the case may be,

(b) a written undertaking made by a person to the Financial and Consumer Services Commission or the Tribunal that has been accepted by the Financial and Consumer Services Commission or the Tribunal, as the case may be, or

(c) a decision of the Financial and Consumer Services Commission or the Tribunal, as the case may be, made without a hearing or without compliance with a requirement of this Act or the regulations, if the parties have waived the hearing or compliance with the requirement.

78.9( 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 Financial and Consumer Services Commission or the Tribunal under any other provision of this Act or under the regulations.

11( 7) Section 82 of the Act is repealed.

11( 8) Section 83 of the Act is repealed and the following is substituted:

83( 1) No person shall interfere with or obstruct the Superintendent while the Superintendent is lawfully carrying out the powers and duties of the Superintendent under this Act.

83( 2) A refusal of consent to enter a private dwelling is not and shall not be considered to be interfering with or obstructing within the meaning of subsection (1), except if an entry warrant has been obtained.

11( 9) Subsection 85(3) of the Act is amended by striking out “Board” and substituting “Tribunal”.

11( 10) The heading “OFFENCES AND PENALTIES” preceding section 88 of the Act is repealed.

11( 11) Section 88 of the Act is repealed.

11( 12) Section 88.1 of the Act is repealed.

11( 13) Section 89 of the Act is repealed.

11( 14) Subsection 100(1) of the Act is amended

(a) by adding after paragraph (t.2) the following:

(t.3) respecting the location at which records referred to in paragraphs (t), (t.1) and (t.2) are to be kept and requiring that they be kept in a certain form;

(b) by adding after paragraph (u) the following:

(u.1) authorizing disclosures for the purposes of subsection 78.51(2);

(u.2) prescribing circumstances, fees and expenses for the purposes of subsection 78.12(8);

11( 15) Schedule A of the Act is repealed and the following is substituted:

SCHEDULE A

Number of provision

7(1)
8(1)
10(1)
13(5)
14(1)
14(2)
15(1)
15(2)
16
17(1)
17(2)
17(3)
18(2)
20
22(2)
23(1)
23(2)
23(3)
24(1)
24(2)
25
26(1)
27(1)
27(2)
27(3)
27(4)
36(2)
36(5)
37(1)
49(2)
49(3)
49(5)
49(6)
49(7)
58
60(2)
62(1)
62(4)
64(1)
65(1)
65(3)
69(8)
78.1(2)(a)
78.1(2)(b)
78.11(1)
78.21
78.22(1)
78.32(5)
78.62
78.71(3)
83(1)

Regulation under the Pension Benefits Act

12 Section 55 of New Brunswick Regulation 91-195 under the Pension Benefits Act is amended

(a) by adding after subsection (1) the following:

55( 1.1) The administrator shall keep the records referred to in subsection (1) at a safe location and in a durable form.

(b) in subsection (4) by striking out “Subsections (1), (2) and (3)” and substituting “Subsections (1), (1.1), (2) and (3)”.

Pre-arranged Funeral Services Act

13( 1) Section 1 of the Pre-arranged Funeral Services Act, chapter 109 of the Revised Statutes, 2012, is amended by adding the following definitions in alphabetical order:

“compliance officer” means a person appointed as a compliance officer under section 30.12. (agent de conformité)

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

“investigator” means a person appointed as an investigator under section 30.31. (enquêteur)

“regulated activity” means any activity governed by this Act or the regulations. (activité réglementée)

13( 2) Section 5 of the Act is amended

(a) by repealing subsection (5) and substituting the following:

5( 5) The Director may at any time restrict a funeral provider’s licence by imposing any terms and conditions that he or she considers appropriate on the licence.

(b) by adding after subsection (5) the following:

5( 6) A licensed funeral provider shall comply with the terms and conditions imposed by the Director under subsection (5) and to any terms and conditions for the licence established by the regulations.

5( 7) The Director shall not refuse to issue a funeral provider’s licence for a reason other than that referred to in subsection (3) or (4) or impose terms and conditions on the licence without giving the applicant or holder of the licence an opportunity to be heard.

5( 8) A funeral provider’s licence remains valid for the period of time prescribed by regulation.

13( 3) Section 6 of the Act is amended

(a) by repealing subsection (5) and substituting the following:

6( 5) The Director may at any time restrict a manager’s licence by imposing any terms and conditions that he or she considers appropriate on the licence.

(b) by adding after subsection (5) the following:

6( 5.1) A licensed manager shall comply with the terms and conditions imposed by the Director under subsection (5) and to any terms and conditions for the licence established by the regulations.

6( 5.2) The Director shall not refuse to issue a manager’s licence for a reason other than that referred to in subsection (4) or impose terms and conditions on the licence without giving the applicant or holder of the licence an opportunity to be heard.

6( 5.3) A manager’s licence remains valid for the period of time prescribed by regulation.

13( 4) The heading “Inspection relating to pre-arranged funeral plan” preceding section 20 of the Act is repealed.

13( 5) Section 20 of the Act is repealed.

13( 6) The heading “Application of section 20” preceding section 21 of the Act is repealed.

13( 7) Section 21 of the Act is repealed.

13( 8) The Act is amended by adding after section 23 the following:

Conflict with the Right to Information and Protection of Privacy Act

23.1 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.

13( 9) The heading “Limitation period” preceding section 25 of the Act is repealed.

13( 10) Section 25 of the Act is repealed.

13( 11) Section 26 of the Act is amended by striking out the portion preceding paragraph (a) and substituting the following:

26 No person, other than a licensed funeral provider under this Act, shall agree for remuneration, reward, or compensation

13( 12) The heading “Offences and penalties” preceding section 27 of the Act is repealed.

13( 13) Section 27 of the Act is repealed.

13( 14) Section 28 of the Act is amended

(a) by repealing paragraph (1)(b) and substituting the following:

(b) has made a statement in the application for the licence or in any information or material submitted, provided, produced, delivered or given to or filed with the Director 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;

(b) by repealing paragraph (2)(b) and substituting the following:

13( 15) Paragraph 28.1(b) of the Act is amended by striking out “subsection 5(4)” and substituting “subsection 5(5) or 6(5)”.

13( 16) The Act is amended by adding after section 30 the following:

Record-keeping

30.1( 1) The following definition applies in this section.

“regulatory authority” means a person empowered by the laws of a jurisdiction to regulate the activities of licensed funeral providers. (organisme de réglementation)

30.1( 2) A licensed funeral provider shall keep books, records and documents that are necessary for the proper recording of its business and affairs and any other books, records and documents that are otherwise required under this Act or the regulations.

30.1( 3) A licensed funeral provider shall keep the books, records and documents at a safe location and in a durable form.

30.1( 4) A licensed funeral provider shall retain the books, records and documents for a minimum period of seven years following:

(a) the full performance of the funeral services to which the books, records and documents relate, or

(b) the termination, cancellation, discontinuance or assignment of the pre-arranged funeral plan to which the books, records and documents relate.

30.1( 5) A licensed funeral provider shall deliver to the Director, or to any other employee of the Financial and Consumer Services Commission, at any time that the Director or other employee requires

(a) any of the books, records and documents that are required to be kept by the licensed funeral provider under this Act or the regulations, and

(b) any filings, reports or other communications made to any other regulatory authority.

False or misleading advertisement

30.11( 1) No licensed funeral provider shall make any false, misleading or deceptive statements in any advertisement, circular, pamphlet or similar material prepared or used in respect of a regulated activity.

30.11( 2) If, in the opinion of the Director, a licensed funeral provider has made a false, misleading or deceptive statement in any advertisement, circular, pamphlet or similar material referred to in subsection (1), the Director may order the licensed funeral provider to stop using that material immediately.

Compliance review

30.12( 1) The Financial and Consumer Services Commission may appoint in writing a person as a compliance officer for the purpose of ensuring compliance with this Act and the regulations.

30.12( 2) The Financial and Consumer Services Commission shall issue to every compliance officer a certificate of appointment and every compliance officer, in the execution of his or her duties under this Act or the regulations, shall produce his or her certificate of appointment on request.

30.12( 3) For the purpose of determining whether this Act and the regulations are being complied with, a compliance officer, in carrying out a compliance review, may

(a) enter the premises of a licensed funeral provider or a former licensee during normal business hours,

(b) require a licensed funeral provider or former licensee or an officer or employee of a licensed funeral provider or of a former licensee to produce for inspection, examination, auditing or copying any books, records or documents relating to the business or affairs of the licensed funeral provider or former licensee,

(c) inspect, examine, audit or copy the books, records or documents relating to the business or affairs of a licensed funeral provider or former licensee, and

(d) question a licensed funeral provider or former licensee or an officer or employee of a licensed funeral provider or of a former licensee in relation to the business or affairs of the licensed funeral provider or former licensee.

30.12( 4) In carrying out a compliance review, a compliance officer may

(a) use a data processing system at the premises where the books, records or documents are kept,

(b) reproduce any book, record or document, and

(c) use any copying equipment at the premises where the books, records or documents are kept to make copies of any book, record or document.

30.12( 5) A compliance officer may carry out a compliance review within or outside the Province.

30.12( 6) A compliance officer shall not enter a private dwelling under subsection (3) unless the compliance officer has the consent of the occupier or has obtained an entry warrant under the Entry Warrants Act.

30.12( 7) Before or after attempting to enter or to have access to any premises, a compliance officer may apply for an entry warrant under the Entry Warrants Act.

30.12( 8) The Financial and Consumer Services Commission may, in circumstances prescribed by regulation, require a licensed funeral provider or former licensee in respect of which a compliance review was carried out to pay the Financial and Consumer Services Commission any fee prescribed by regulation and to reimburse the Financial and Consumer Services Commission for any expenses prescribed by regulation.

Removal of documents

30.2( 1) A compliance officer who removes books, records or documents to make a copy or extract of them or any part of them shall give a receipt to the occupier of the premises for the books, records or documents removed and return the books, records or documents as soon as possible after the making of copies or extracts.

30.2( 2) A copy or extract of any book, record or document related to a compliance review and purporting to be certified by a compliance officer is admissible in evidence in any action, proceeding or prosecution and is proof, in the absence of evidence to the contrary, of the original without proof of the appointment, authority or signature of the person purporting to have certified the copy or extract.

Misleading statements

30.21 No person shall knowingly make a false or misleading statement, either orally or in writing, to a compliance officer while the compliance officer is engaged in carrying out his or her duties under this Act or the regulations.

Obstruction

30.22( 1) No person shall obstruct or interfere with a compliance officer who is carrying out or attempting to carry out a compliance review under this Act, or withhold, destroy, conceal, alter or refuse to produce any information or thing reasonably required by a compliance officer for the purposes of the compliance review.

30.22( 2) A refusal of consent to enter a private dwelling is not and shall not be considered to be interfering with or obstructing within the meaning of subsection (1), except if an entry warrant has been obtained.

Provision of information to Director

30.3( 1) The Director may make an order under subsection (2)

(a) for the administration of this Act or the regulations, or

(b) to assist in the administration of similar legislation of another jurisdiction.

30.3( 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 licensed funeral provider;

(b) a former licensee; or

(c) any person that is not a licensed funeral provider and that is, or the Director has reason to suspect is, carrying out a regulated activity.

30.3( 3) The Director may require that the authenticity, accuracy or completeness of information provided or of a book, record or document or a class of books, records or documents produced pursuant to an order under subsection (2) be verified by affidavit.

30.3( 4) The Director may require that the information 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

30.31( 1) The Financial and Consumer Services Commission may, by order, appoint a person as an investigator to make any investigation that the Financial and Consumer Services Commission considers expedient

(a) for the administration of this Act or the regulations, or

(b) to assist in the administration of similar legislation of another jurisdiction.

30.31( 2) In its order, the Financial and Consumer Services Commission shall specify the scope of an investigation to be carried out under subsection (1).

Powers of investigator

30.32( 1) An investigator may, with respect to the person who is the subject of the investigation, investigate, inspect and examine

(a) the business or 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.

30.32( 2) For the purposes of an investigation under this Act, an investigator may inspect and examine any book, record, document or thing, whether in possession or control of the person in respect of whom the investigation is ordered or any other person.

30.32( 3) An investigator making an investigation under this Act may, on production of the order appointing him or her,

(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.

30.32( 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.

30.32( 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

30.4( 1) An investigator making an investigation under this Act 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 of Queen’s Bench has for the trial of civil actions.

30.4( 2) On the application of an investigator to the Court of Queen’s Bench, 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 of Queen’s Bench.

30.4( 3) A person giving evidence at an investigation conducted under this section may be represented by legal counsel.

30.4( 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

30.41 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

30.42( 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 Act, 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.

30.42( 2) If books, records, documents or things are seized under this Act 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.

30.42( 3) If books, records, documents or things are seized under this Act 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 of Queen’s Bench for the return of the books, records, documents or things.

30.42( 4) On a motion under subsection (3), the Court of Queen’s Bench 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

30.5( 1) If an investigation has been made under this Act, the investigator shall, at the request of the Financial and Consumer Services Commission, provide to the Financial and Consumer Services Commission a report of the investigation or any transcripts of evidence or any material or other things in the investigator’s possession relating to the investigation.

30.5( 2) A report that is provided to the Financial and Consumer Services Commission under this section is privileged and is inadmissible in evidence in any action or proceeding.

Prohibition against disclosure

30.51( 1) For the purpose of protecting the integrity of an investigation under this Act, the Financial and Consumer Services 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;

(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.

30.51( 2) An order under subsection (1) does not apply to disclosures authorized by the regulations or by the Director in writing.

30.51( 3) An investigator making an investigation under this Act may make, or authorize the making of, any disclosure of information that may be required for the effectual conduct of the investigation.

Non-compellability

30.52 None of the following persons is 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 Act:

(a) an investigator;

(b) the Financial and Consumer Services Commission;

(d) an employee of the Financial and Consumer Services Commission;

(e) a member of the Tribunal; and

(f) a person engaged by the Financial and Consumer Services Commission under section 18 of the Financial and Consumer Services Commission Act.

Offences generally

30.6( 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 to or filed with the Financial and Consumer Services Commission, the Director, a compliance officer, an investigator or any person acting under the authority of the Financial and Consumer Services Commission or the Director 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 this Act or the regulations;

(d) violates or fails to comply with a provision of this Act that is listed in Schedule A;

(e) violates or fails to comply with a decision, ruling, order, temporary order or direction of the Financial and Consumer Services Commission, the Director or the Tribunal made or given under this Act or the regulations;

(f) violates or fails to comply with a written undertaking made by that person to the Financial and Consumer Services Commission, the Director or the Tribunal under this Act or the regulations; or

(g) violates or fails to comply with any provision of the regulations.

30.6( 2) Without limiting the availability of other defences, no person commits an offence under paragraph (1)(a) or (b) if

Misleading or untrue statements

30.61 In carrying on a regulated activity, no person shall make a statement that the person knows or reasonably ought to know 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.

Interim preservation of property

30.62( 1) On the application of the Financial and Consumer Services Commission, the Tribunal may make one or more of the following orders if the Tribunal considers it expedient for the administration of this Act or the regulations or to assist in the administration of similar legislation of another jurisdiction:

(a) an order directing a person having on deposit or under control or for safekeeping any funds, securities or property to retain the funds, securities or property and to hold them;

(b) an order directing a person to refrain from withdrawing the person’s funds, securities or property from any other person having any of them on deposit or under control or for safekeeping; or

30.62( 2) An order under subsection (1) that names a financial institution shall apply only to the branches of the financial institution identified in the order.

30.62( 3) An order under subsection (1) is effective for seven days after its making, but the Financial and Consumer Services Commission may apply to the Court of Queen’s Bench to continue the order or for any other order that the Court of Queen’s Bench considers appropriate.

30.62( 4) An order under subsection (1) may be made ex parte but, in that event, copies of the order shall be sent without delay by any means that the Tribunal determines to all persons named in the order.

30.62( 5) A person in receipt of an order under subsection (1) who is in doubt as to the application of the order to any funds, securities or property or as to a claim being made to that person by any person not named in the order may apply to the Tribunal for direction or clarification.

30.62( 6) The Tribunal, on the application of the Financial and Consumer Services Commission or of a person directly affected by the order, may revoke an order under subsection (1) or permit the release of any funds, securities or property in respect of which the order was made.

30.62( 7) A notice of an order under subsection (1) may be registered or recorded against the lands or claims identified in the order by submitting the notice to the appropriate registry office established under the Registry Act or to the appropriate land titles office established under the Land Titles Act.

30.62( 8) The Tribunal may order a notice submitted under subsection (7) to be revoked or modified and, if an order is made, the Financial and Consumer Services Commission shall submit a copy of the revocation or modification to the appropriate registry office or land titles office.

30.62( 9) On submission of a notice under subsection (7) or a copy of a written revocation or modification under subsection (8), the notice or the copy of the revocation or modification shall be registered or recorded in the registry office or land titles office, as the case may be, by the registrar and has the same effect as the registration or recording of a certificate of pending litigation.

Orders in the public interest

30.7( 1) On the application of the Financial and Consumer Services 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 this Act or the regulations do not apply to a person permanently or for any period specified in the order;

(d) an order that a person submit to a review of the person’s practices and procedures relating to regulated activities and institute any changes directed by the Tribunal;

(e) if the Tribunal is satisfied that this Act or the regulations 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 violating or comply with, and that the directors and officers of the person cause the person to cease violating or to comply with, this Act and the regulations;

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

30.7( 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.

30.7( 4) Unless the parties and the Tribunal consent, no order shall be made under this section without a hearing.

30.7( 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).

30.7( 6) The temporary order shall take effect immediately and shall expire on the fifteenth day after its making unless extended by the Tribunal.

30.7( 7) The Tribunal may extend a temporary order until the hearing is concluded if a hearing is commenced within the 15-day period.

30.7( 8) The Financial and Consumer Services 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

30.71( 1) On the application of the Financial and Consumer Services 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 violated or failed to comply with this Act or the regulations, and

(b) is of the opinion that it is in the public interest to make the order.

30.71( 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 Financial and Consumer Services Commission or the Director related to the same matter.

Directors and officers

30.8 If a person other than an individual violates or has not complied with this Act or the regulations, a director or officer of the person who authorized, permitted or acquiesced in the violation or non-compliance shall be deemed also to have violated or not complied with this Act or the regulations, whether or not any proceeding has been commenced against the person under this Act or the regulations or any order has been made against the person under section 30.7.

Resolution of administrative proceedings

30.81( 1) Despite any other provision of this Act or the regulations, an administrative proceeding conducted by the Financial and Consumer Services Commission, the Tribunal or the Director under this Act or the regulations may be disposed of by

(a) an agreement approved by the Financial and Consumer Services Commission, the Tribunal or the Director, as the case may be,

(b) a written undertaking made by a person to the Financial and Consumer Services Commission, the Tribunal or the Director that has been accepted by the Financial and Consumer Services Commission, the Tribunal or the Director, as the case may be, or

(c) a decision of the Financial and Consumer Services Commission, the Tribunal or the Director, as the case may be, made without a hearing or without compliance with a requirement of this Act or the regulations, if the parties have waived the hearing or compliance with the requirement.

30.81( 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 Financial and Consumer Services Commission, the Tribunal or the Director under any other provision of this Act or under the regulations.

Limitation period

30.9 No proceeding under this Act or the regulations shall be commenced more than six years after the date of the occurrence of the last event on which the proceeding is based.

13( 17) Section 31 of the Act is amended by

(a) by adding after paragraph (f) the following:

(f.1) requiring, for the purposes of subsection 30.1(2), that certain books, records or documents be kept;

(f.2) authorizing disclosures for the purposes of subsection 30.51(2);

(f.3) prescribing circumstances, fees and expenses for the purposes of subsection 30.12(8);

(b) by repealing paragraph (g).

13( 18) Schedule A of the Act is repealed and the following is substituted:

SCHEDULE A

Number of provision

3
5(6)
6(1)
6(5.1)
8(2)
10(8)
12
13
14
15(1)
15(4)
15(6)
17(1)
17(4)
18(1)
18(2)
19(1)
22
26
30.1(2)
30.1(3)
30.1(4)
30.1(5)(a)
30.1(5)(b)
30.11(1)
30.21
30.22(1)
30.32(5)
30.61
30.7(3)

Regulation under the Pre-arranged Funeral Services Act

14 Section 12 of New Brunswick Regulation 88-32 under the Pre-arranged Funeral Services Act is amended

(a) in subsection (2) by striking out the portion preceding paragraph (a) and substituting the following:

12( 2) For the purposes of subsection 30.1(2) of the Act, a licensed funeral provider shall maintain the following records:

(b) by repealing subsection (3).

Real Estate Agents Act

15( 1) Section 1 of the Real Estate Agents Act, chapter 215 of the Revised Statutes, 2011, is amended by adding the following definitions in alphabetical order:

“compliance officer” means a person appointed as a compliance officer under section 43.12. (agent de conformité)

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

“inspector” means an inspector appointed under section 28. (inspecteur)

“investigator” means a person appointed as an investigator under section 43.31. (enquêteur)

“regulated activity” means any activity governed by this Act or the regulations. (activité réglementée)

15( 2) Section 10 of the Act is amended

(a) by adding after subsection (1) the following:

10( 1.1) The Director may at any time restrict a licence by imposing any terms and conditions that he or she considers appropriate on the licence.

10( 1.2) A licensee shall comply with the terms and conditions imposed by the Director on the licence.

10( 1.3) The Director shall not refuse an application for a licence or impose terms and conditions on the licence without giving the applicant or licensee an opportunity to be heard.

(b) by adding after subsection (2) the following:

10( 2.1) The Director shall not suspend or cancel a licence without giving the licensee an opportunity to be heard.

15( 3) Section 14 of the Act is amended by striking out “or a licensee” and substituting “for a licence”.

15( 4) Section 20 of the Act is amended

(a) by renumbering the section as subsection 20(1);

(b) by adding the following after subsection (1):

20( 2) If an agent’s licence is suspended or cancelled under this Act, the Director may order the institution in which the agent’s trust account is held to refrain from paying out all or any part of the money in the account for the period of the suspension or cancellation.

15( 5) The heading “Books, records and accounts” preceding section 23 of the Act is repealed.

15( 6) Section 23 of the Act is repealed.

15( 7) The heading “Maintenance of records” preceding section 24 of the Act is repealed.

15( 8) Section 24 of the Act is repealed.

15( 9) Section 28 of the Act is amended

(a) by repealing subsection (1) and substituting the following:

28( 1) The Association may appoint in writing a person as an inspector for the purpose of ensuring compliance with this Act and the regulations.

(b) in subsection (2) by striking out “an inspector shall produce, on demand, the certificate to the person in charge of the place” and substituting “an inspector shall produce, on request, the certificate to the occupier of the place”;

28( 4) For the purpose of determining whether this Act and the regulations are being complied with, an inspector, in carrying out an inspection, may

(a) enter, during normal business hours, the premises of an agent in respect of whom an inspection is being carried out,

(b) require the agent or an official, an employee or a manager of the agent to produce for inspection, examination, auditing or copying any books, records or accounts relating to the business or affairs of the agent,

(d) question the agent or an official, an employee or a manager of the agent in relation to the business or affairs of the agent.

(d) by adding after subsection (4) the following:

28( 4.1) In carrying out an inspection, an inspector may

(a) use a data processing system at the premises where the books, records or accounts are kept,

(b) reproduce any book, record or account, and

(c) use any copying equipment at the premises where the books, records or accounts are kept to make copies of any book, record or account.

28( 4.2) An inspector may carry out an inspection within or outside the Province.

28( 4.3) An inspector shall not enter a private dwelling under subsection (4) unless the inspector has the consent of the occupier or has obtained an entry warrant under the Entry Warrants Act.

28( 4.4) Before or after attempting to enter or to have access to any premises, an inspector may apply for an entry warrant under the Entry Warrants Act.

(e) by repealing subsection (5) and substituting the following:

28( 5) An inspector who removes books, records or accounts to make a copy or extract of them or any part of them shall give a receipt to the occupier of the premises for the books, records or accounts removed and return the books, records or accounts as soon as possible after the making of copies or extracts.

(f) by repealing subsection (6) and substituting the following:

28( 6) A copy or extract of any book, record or account related to an inspection and purporting to be certified by an inspector is admissible in evidence in any action, proceeding or prosecution and is proof, in the absence of evidence to the contrary, of the original without proof of the appointment, authority or signature of the person purporting to have certified the copy or extract.

15( 10) Section 29 of the Act is repealed and the following is substituted:

Obstruction of inspector

29( 1) No person shall obstruct or interfere with an inspector who is carrying out or attempting to carry out an inspection under this Act, or withhold, destroy, conceal, alter or refuse to produce any information or thing reasonably required by an inspector for the purposes of the inspection.

29( 2) A refusal of consent to enter a private dwelling is not and shall not be considered to be interfering with or obstructing within the meaning of subsection (1), except if an entry warrant has been obtained.

29( 3) No person shall knowingly make a false or misleading statement, either orally or in writing, to an inspector while the inspector is engaged in carrying out his or her duties under this Act or the regulations.

15( 11) Paragraph 30(d) of the Act is amended by striking out “The Court of Queen’s Bench of New Brunswick” and substituting “the Court of Queen’s Bench”.

15( 12) Subsection 31(8) of the Act is amended by striking out “Registrar of The Court of Queen’s Bench of New Brunswick” and substituting “Registrar of the Court of Queen’s Bench”.

15( 13) The heading “Power of inquiry of Director” preceding section 32 of the Act is repealed.

15( 14) Section 32 of the Act is repealed.

15( 15) The Act is amended by adding after section 43 the following:

Record-keeping

43.1( 1) The following definition applies in this section.

“regulatory authority” means a person empowered by the laws of a jurisdiction to regulate the activities of an agent. (organisme de réglementation)

43.1( 2) An agent shall keep the following records:

(a) a copy of each written offer to purchase real estate obtained by the agent or the agent’s manager or salesperson; and

(b) a record showing in respect of each transaction or trade

( i) the date of it,

( ii) the nature of the trade,

( iii) a description of the real estate involved sufficient to identify it,

( iv) the true consideration for the trade,

( v) the names of all parties to the trade,

( vi) the amount of the deposit received and a record of the disbursement of it, and

( vii) the amount of the agent’s commission or other remuneration and the name of the party paying it.

43.1( 3) In addition to the records required to be kept under subsection (2), an agent shall keep books, records and accounts that are necessary for the proper recording of the agent’s business and affairs and any other books, records and accounts that are otherwise required under this Act or the regulations.

43.1( 4) An agent shall ensure that the books, records and accounts required to be kept under subsection (2) or (3) show and readily distinguish

(a) all money received from or on behalf of and all money paid to or on behalf of others, and the amount of money held on behalf of each person, and

(b) all money received and paid on the agent’s own behalf.

43.1( 5) An agent shall keep the books, records and accounts at a safe location and in a durable form.

43.1( 6) An agent shall retain the books, records and accounts for a minimum period of seven years after the date of the transaction or trade to which the books, records or accounts relate.

43.1( 7) An agent shall deliver to the Director, or to any other employee of the Commission, at any time that the Director or other employee requires

(a) any of the books, records and accounts that are required to be kept by the agent under this Act or the regulations, and

(b) any filings, reports or other communications made to any other regulatory authority.

False or misleading advertisement

43.11( 1) No licensee shall make any false, misleading or deceptive statements in any advertisement, circular, pamphlet or similar material prepared or used in respect of a regulated activity.

43.11( 2) If, in the opinion of the Director, a licensee has made a false, misleading or deceptive statement in any advertisement, circular, pamphlet or similar material referred to in subsection (1), the Director may order the licensee to stop using that material immediately.

Compliance review

43.12( 1) The Commission may appoint in writing a person as a compliance officer for the purpose of ensuring compliance with this Act and the regulations.

43.12( 2) The Commission shall issue to every compliance officer a certificate of appointment and every compliance officer, in the execution of his or her duties under this Act or the regulations, shall produce his or her certificate of appointment on request.

43.12( 3) For the purpose of determining whether this Act and the regulations are being complied with, a compliance officer, in carrying out a compliance review, may

(a) enter, during normal business hours, the premises of an agent in respect of whom a compliance review is being carried out,

(d) question the agent or an official, an employee or a manager of the agent in relation to the business or affairs of the agent.

43.12( 4) In carrying out a compliance review, a compliance officer may

(a) use a data processing system at the premises where the books, records or accounts are kept,

(b) reproduce any book, record or account, and

(c) use any copying equipment at the premises where the books, records or accounts are kept to make copies of any book, record or account.

43.12( 5) A compliance officer may carry out a compliance review within or outside the Province.

43.12( 6) A compliance officer shall not enter a private dwelling under subsection (3) unless the compliance officer has the consent of the occupier or has obtained an entry warrant under the Entry Warrants Act.

43.12( 7) Before or after attempting to enter or to have access to any premises, a compliance officer may apply for an entry warrant under the Entry Warrants Act.

43.12( 8) The Commission may, in prescribed circumstances, require an agent in respect of whom a compliance review was carried out to pay the Commission any prescribed fee and to reimburse the Commission for any prescribed expenses.

Removal of documents

43.2( 1) A compliance officer who removes books, records or accounts to make a copy or extract of them or any part of them shall give a receipt to the occupier of the premises for the books, records or accounts removed and return the books, records or accounts as soon as possible after the making of copies or extracts.

43.2( 2) A copy or extract of any book, record or account related to a compliance review and purporting to be certified by a compliance officer is admissible in evidence in any action, proceeding or prosecution and is proof, in the absence of evidence to the contrary, of the original without proof of the appointment, authority or signature of the person purporting to have certified the copy or extract.

Misleading statements

43.21 No person shall knowingly make a false or misleading statement, either orally or in writing, to a compliance officer while the compliance officer is engaged in carrying out his or her duties under this Act or the regulations.

Obstruction

43.22( 1) No person shall obstruct or interfere with a compliance officer who is carrying out or attempting to carry out a compliance review under this Act, or withhold, destroy, conceal, alter or refuse to produce any information or thing reasonably required by a compliance officer for the purposes of the compliance review.

43.22( 2) A refusal of consent to enter a private dwelling is not and shall not be considered to be interfering with or obstructing within the meaning of subsection (1), except if an entry warrant has been obtained.

Provision of information to Director

43.3( 1) The Director may make an order under subsection (2)

(a) for the administration of this Act or the regulations, or

(b) to assist in the administration of similar legislation of another jurisdiction.

43.3( 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 accounts or classes of books, records or accounts specified or otherwise described in the order within the time or at the intervals specified in the order:

(a) a licensee;

(b) a former licensee; or

(c) any person that is not a licensee and that is, or the Director has reason to suspect is, carrying out a regulated activity.

43.3( 3) The Director may require that the authenticity, accuracy or completeness of information provided or of a book, record or account or a class of books, records or accounts produced pursuant to an order under subsection (2) be verified by affidavit.

43.3( 4) The Director may require that the information provided or that the books, records or accounts or classes of books, records or accounts produced pursuant to an order made under subsection (2) be delivered in electronic form, if the information or the books, records or accounts or classes of books, records or accounts are already available in that form.

Investigation order

43.31( 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 Act or the regulations, or

(b) to assist in the administration of similar legislation of another jurisdiction.

43.31( 2) In its order, the Commission shall specify the scope of an investigation to be carried out under subsection (1).

Powers of investigator

43.32( 1) An investigator may, with respect to the person who is the subject of the investigation, investigate, inspect and examine

(a) the business or affairs of that person,

(b) any books, records, accounts 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 a representative of that person.

43.32( 2) For the purposes of an investigation under this Act, an investigator may inspect and examine any book, record, account or thing, whether in possession or control of the person in respect of whom the investigation is ordered or any other person.

43.32( 3) An investigator making an investigation under this Act 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, account 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, account or thing referred to in paragraph (a) for inspection or examination, and

(c) on giving a receipt, remove the book, record, account or thing inspected or examined under paragraph (a) or (b) for the purpose of further inspection or examination.

43.32( 4) Inspection or examination under this section shall be completed as soon as possible and the books, records, accounts or things shall be returned promptly to the person who produced them.

43.32( 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, account or thing reasonably required under subsection (3) by an investigator.

Power to compel evidence

43.4( 1) An investigator making an investigation under this Act 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, accounts and things or classes of books, records, accounts and things as the Court of Queen’s Bench has for the trial of civil actions.

43.4( 2) On the application of an investigator to the Court of Queen’s Bench, the failure or refusal of a person to attend, to take an oath, to answer questions or to produce books, records, accounts and things or classes of books, records, accounts 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 of Queen’s Bench.

43.4( 3) A person giving evidence at an investigation conducted under this section may be represented by legal counsel.

43.4( 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

43.41 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

43.42( 1) On request to the investigator by the person who, at the time of the seizure, was in lawful possession of books, records, accounts or things seized under this Act, the books, records, accounts 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.

43.42( 2) If books, records, accounts or things are seized under this Act and the matter for which the books, records, accounts or things were seized is concluded, the investigator shall return those books, records, accounts 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.

43.42( 3) If books, records, accounts or things are seized under this Act and the person who was in lawful possession of the books, records, accounts or things at the time of the seizure alleges that the books, records, accounts 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 of Queen’s Bench for the return of the books, records, accounts or things.

43.42( 4) On a motion under subsection (3), the Court of Queen’s Bench shall order the return of any books, records, accounts 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, accounts or things at the time of the seizure.

Report of investigation

43.5( 1) If an investigation has been made under this Act, 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.

43.5( 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

43.51( 1) For the purpose of protecting the integrity of an investigation under this Act, 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;

(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.

43.51( 2) An order under subsection (1) does not apply to disclosures authorized by the regulations or by the Director in writing.

43.51( 3) An investigator making an investigation under this Act may make, or authorize the making of, any disclosure of information that may be required for the effectual conduct of the investigation.

Non-compellability

43.52 None of the following persons is 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 Act:

(a) an investigator;

(b) the Commission;

(d) an employee of the Commission;

(e) a member of the Tribunal; and

(f) a person engaged by the Commission under section 18 of the Financial and Consumer Services Commission Act.

Offences generally

43.6( 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:

(c) withholds, destroys, conceals, alters or refuses to produce any information or thing reasonably required for the purposes of an administrative proceeding under this Act or the regulations;

(d) violates or fails to comply with a provision of this Act that is listed in Schedule A;

(e) violates 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 this Act or the regulations;

(f) violates or fails to comply with a written undertaking made by that person to the Commission, the Director or the Tribunal under this Act or the regulations; or

(g) violates or fails to comply with any provision of the regulations.

43.6( 2) Without limiting the availability of other defences, no person commits an offence under paragraph (1)(a) or (b) if

Misleading or untrue statements

43.61 In carrying on a regulated activity, no person shall make a statement that the person knows or reasonably ought to know 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.

Interim preservation of property

43.62( 1) On the application of the Commission, the Tribunal may make one or more of the following orders if the Tribunal considers it expedient for the administration of this Act or the regulations or to assist in the administration of similar legislation of another jurisdiction:

(a) an order directing a person having on deposit or under control or for safekeeping any funds, securities or property to retain the funds, securities or property and to hold them;

(b) an order directing a person to refrain from withdrawing the person’s funds, securities or property from any other person having any of them on deposit or under control or for safekeeping; or

43.62( 2) An order under subsection (1) that names a financial institution shall apply only to the branches of the financial institution identified in the order.

43.62( 3) An order under subsection (1) is effective for seven days after its making, but the Commission may apply to the Court of Queen’s Bench to continue the order or for any other order that the Court of Queen’s Bench considers appropriate.

43.62( 4) An order under subsection (1) may be made ex parte but, in that event, copies of the order shall be sent without delay by any means that the Tribunal determines to all persons named in the order.

43.62( 5) A person in receipt of an order under subsection (1) who is in doubt as to the application of the order to any funds, securities or property or as to a claim being made to that person by any person not named in the order may apply to the Tribunal for direction or clarification.

43.62( 6) The Tribunal, on the application of the Commission or of a person directly affected by the order, may revoke an order under subsection (1) or permit the release of any funds, securities or property in respect of which the order was made.

43.62( 7) A notice of an order under subsection (1) may be registered or recorded against the lands or claims identified in the order by submitting the notice to the appropriate registry office established under the Registry Act or to the appropriate land titles office established under the Land Titles Act.

43.62( 8) The Tribunal may order a notice submitted under subsection (7) to be revoked or modified and, if an order is made, the Commission shall submit a copy of the revocation or modification to the appropriate registry office or land titles office.

43.62( 9) On submission of a notice under subsection (7) or a copy of a written revocation or modification under subsection (8), the notice or the copy of the revocation or modification shall be registered or recorded in the registry office or land titles office, as the case may be, by the registrar and has the same effect as the registration or recording of a certificate of pending litigation.

Orders in the public interest

43.7( 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 this Act or the regulations do not apply to a person permanently or for any period specified in the order;

(d) an order that a person submit to a review of the person’s practices and procedures relating to regulated activities and institute any changes directed by the Tribunal;

(e) if the Tribunal is satisfied that this Act or the regulations 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 violating or comply with, and that the directors and officials of the person cause the person to cease violating or to comply with, this Act and the regulations;

(i) if a person has not complied with this Act or the regulations, an order requiring the person to disgorge to the Commission any amounts obtained as a result of the non-compliance.

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

43.7( 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.

43.7( 4) Unless the parties and the Tribunal consent, no order shall be made under this section without a hearing.

43.7( 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).

43.7( 6) The temporary order shall take effect immediately and shall expire on the fifteenth day after its making unless extended by the Tribunal.

43.7( 7) The Tribunal may extend a temporary order until the hearing is concluded if a hearing is commenced within the 15-day period.

43.7( 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

43.71( 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 violated or failed to comply with this Act or the regulations, and

(b) is of the opinion that it is in the public interest to make the order.

43.71( 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.

Directors and officers

43.8 If a person other than an individual violates or has not complied with this Act or the regulations, a director or official of the person who authorized, permitted or acquiesced in the violation or non-compliance shall be deemed also to have violated or not complied with this Act or the regulations, whether or not any proceeding has been commenced against the person under this Act or the regulations or any order has been made against the person under section 43.7.

Resolution of administrative proceedings

43.81( 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 Act or the regulations 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 the Director, as the case may be, or

43.81( 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

43.9 No proceeding under this Act or the regulations shall be commenced more than six years after the date of the occurrence of the last event on which the proceeding is based.

Conflict with the Right to Information and Protection of Privacy Act

43.91 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.

15( 16) The heading “Offences and penalties” preceding section 44 of the Act is repealed.

15( 17) Section 44 of the Act is repealed.

15( 18) The heading “Limitation of actions” preceding section 45 of the Act is repealed.

15( 19) Section 45 of the Act is repealed.

15( 20) Section 48 of the Act is amended by

(a) by adding after paragraph (f) the following:

(f.1) requiring, for the purposes of subsection 43.1(3), that certain books, records or accounts be kept;

(f.2) authorizing disclosures for the purposes of subsection 43.51(2);

(f.3) prescribing circumstances, fees and expenses for the purposes of subsection 43.12(8);

(b) by repealing paragraph (g).

15( 21) Schedule A of the Act is repealed and the following is substituted:

SCHEDULE A

Number of provision

2(a)
2(b)
2(c)
5
7
8(1)(a)
8(1)(b)
10(1.2)
10(7)
15(1)(a)
15(1)(b)
15(1)(c)
15(1)(d)
15(1)(e)
15(1)(f)
15(1)(g)
15(1)(h)
15(2)(a)
15(2)(b)
15(2)(c)
18
19(1)
19(2)
19(3)
19(4)
20(1)
21(1)
25(1)
25(4)
25(6)
29(1)
29(3)
35(a)
35(b)
36(3)
38(3)
38(4)(a)
38(4)(b)
38(4)(c)
38(5)(a)
38(5)(b)
39
40(1)
40(2)
41(1)(a)
41(1)(b)
41(2)(a)
41(2)(b)
42(1)(a)
42(1)(b)
42(1)(c)
42(1)(d)
43(1)(a)
43(1)(b)
43(2)(a)
43(2)(b)
43.1(2)
43.1(3)
43.1(4)
43.1(5)
43.1(6)
43.1(7)(a)
43.1(7)(b)
43.11(1)
43.21
43.22(1)
43.32(5)
43.61
43.7(3)

Regulation under the Real Estate Agents Act

16( 1) Section 12 of New Brunswick Regulation 85-24 under the Real Estate Agents Act is repealed.

16( 2) Section 15 of the Regulation is repealed.

Securities Act

17( 1) Paragraph 172(1)(a) of the Securities Act, chapter S-5.5 of the Acts of New Brunswick, 2004, is amended by striking out “affairs” and substituting “business or affairs”.

17( 2) Subsection 176(2) of the English version of the Act is amended by striking out “provided to the Commission” and substituting “provided to the Chair”.

17( 3) Section 177.1 of the Act is amended by adding after paragraph (c) the following:

(c.1) a member of the Tribunal;

17( 4) Subsection 179(2) of the Act is amended by adding after paragraph (c) the following:

(c.1) withholds, destroys, conceals, alters or refuses to produce any information or thing reasonably required for the purposes of an administrative proceeding under this Act or the regulations;

17( 5) The Act is amended by adding after section 186 the following:

Directors and officers

186.1 If a person other than an individual contravenes or has not complied with this Act or the regulations, a director or officer of the person who authorized, permitted or acquiesced in the contravention or non-compliance shall be deemed also to have contravened or not complied with this Act or the regulations, whether or not any proceeding has been commenced against the person under this Act or the regulations or any order has been made against the person under section 184.

Teachers’ Pension Plan Act

18 Subsection 3(2) of the Teachers’ Pension Plan Act, chapter 61 of the Acts of New Brunswick, 2014, is amended

(a) by repealing paragraph (a) and substituting the following:

(a) the definition “regulated activity” in section 1;

(b) by adding after paragraph (a) the following:

(a.1) 10(10);

(d) in paragraph (j) by striking out “82(1),”;

(e) by adding after paragraph (j) the following:

(j.1) 78.1(2), 78.12(1), (2) and (3), 78.21, 78.22(1), 78.3(1), 78.31(1), 78.32(2) and (3), 78.4(1), 78.41, 78.42(1), (2) and (3), 78.5(1), 78.51, 78.52, 78.6(1), (2), (4) and (5), 78.61, 78.7(1), 78.71(1), 78.8(1), 78.81 and 78.9;

Transitional provision

19( 1) Subject to subsection (2), a limitation period in any of the following sections applies to acts or omissions that took place before the commencement of that section:

(a) section 9.9 of the Collection Agencies Act, as enacted by subsection 1(15) of this Act;

(b) section 59.8 of the Co-operative Associations Act, as enacted by subsection 3(4) of this Act;

(d) section 396 of the Insurance Act, as enacted by subsection 7(17) of this Act;

(e) section 30.9 of the Pre-arranged Funeral Services Act, as enacted by subsection 13(16) of this Act;

(f) section 43.9 of the Real Estate Agents Act, as enacted by subsection 15(15) of this Act.

19( 2) Subsection (1) does not operate so as to revive any limitation period that expired before the commencement of that subsection.

19( 3) Subject to subsection (4), the limitation period in section 249.6 of the Credit Unions Act, as enacted by subsection 4(8) of this Act, applies to acts or omissions that took place before the commencement of that section.

19( 4) Subsection (3) does not operate so as to revive any limitation period that expired before the commencement of section 249.6 of the Credit Unions Act.

Commencement

20 Section 4 and subsections 19(3) and (4) of this Act and paragraph 21(6)(c) of the Financial and Consumer Services Commission Act, as enacted by subsection 6(1) of this Act, come into force on the later of the following dates:

(a) the date of the commencement of this section, and

(b) the date on which section 131 of An Act to Amend the Credit Unions Act, chapter 10 of the Acts of New Brunswick, 2016, comes into force.