Bill 29 - Financial Advisors and Financial Planners Title Protection Act

BILL 29

Financial Advisors and Financial Planners
Title Protection Act

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

PART 1

DEFINITIONS AND
INTERPRETATION

Definitions

1 The following definitions apply in this Act.

“administrative penalty officer” means a person appointed as an administrative penalty officer under section 28. (agent de pénalité administrative)

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

“compliance officer” means a person appointed as a compliance officer under section 22. (agent de conformité)

“Court” means the Court of King’s Bench of New Brunswick and includes any judge of that court. (cour)

“credentialing body” means a person that is approved by the Director to oversee financial advisors, financial planners or both. (organisme d’accréditation)

“Director” means the Director of Financial Advisors and Financial Planners appointed under the Financial and Consumer Services Commission Act and includes any person designated by the Commission or the Director to act on the Director’s behalf. (directeur)

“financial advisor” means a person who (conseiller financier)

(a) is in good standing with a credentialing body,

(b) has been issued by the credentialing body a credential approved by the Director, and

“financial planner” means a person who (planificateur financier)

(a) is in good standing with a credentialing body,

(b) has been issued by the credentialing body a credential approved by the Director, and

“investigator” means a person appointed as an investigator under section 41. (enquêteur)

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

“regulated activity” means any activity governed by this Act or the regulations, including the use of the titles or any variation or abbreviation of the titles referred to in subsections 4(1) and (2). (activité réglementée)

“regulatory authority” means a person empowered by the laws of a jurisdiction to regulate activities that are the equivalent of regulated activities. (organisme de réglementation)

“regulation” means a regulation made under this Act and, unless the context otherwise indicates, includes a rule. (règlement)

“rule” means a rule made under this Act or, if the context requires, a rule made under the Financial and Consumer Services Commission Act. (règle)

“Tribunal” means the Tribunal as defined in the Financial and Consumer Services Commission Act. (Tribunal)

Non-application of Act

2( 1) This Act or any provision of it does not apply to

(a) any person or class of persons exempted from the application of the Act or provision by an order of the Director made under subsection 3(1), or

(b) any person or class of persons prescribed by regulation.

2( 2) A person exempted under paragraph (1)(b) from the application of this Act or any provision of it shall comply with any terms or conditions prescribed by regulation.

Exemptions

3( 1) If the Director considers it appropriate to do so, the Director may, by order and subject to any terms and conditions the Director considers appropriate, exempt any person or class of persons from the application of this Act or any provision of it or from the application of the regulations or any provision of them.

3( 2) An order under subsection (1) may be made on the Director’s own motion or on the application of an interested person and may be retroactive in its operation.

3( 3) An application referred to in subsection (2) shall be on a form provided by the Director and accompanied by the fees prescribed by regulation.

3( 4) A person to whom the order applies shall comply with the terms and conditions imposed by the Director under subsection (1).

PART 2

TITLE PROTECTION

Use of titles

4( 1) Unless a person is a financial advisor, no person shall represent that they are a financial advisor or use

(a) the title “Financial Advisor”,

(b) the title “conseiller financier”,

(d) a variation or abbreviation of any of the titles referred to in paragraphs (a) to (c) or an equivalent in another language, or

(e) a title that implies that the person is entitled to use any of the titles referred to in paragraphs (a) to (c).

4( 2) Unless a person is a financial planner, no person shall represent that they are a financial planner or use

(a) the title “Financial Planner”,

(b) the title “planificateur financier”,

(d) a variation or abbreviation of any of the titles referred to in paragraphs (a) to (c) or an equivalent in another language, or

(e) a title that implies that the person is entitled to use any of the titles referred to in paragraphs (a) to (c).

PART 3

APPROVALS

Division A

Credentialing bodies

Approval required

5( 1) No person shall carry on business as a credentialing body or represent that they are a credentialing body unless they are approved by the Director as a credentialing body under section 6.

5( 2) No person shall represent that a credential they issue is approved under this Act unless the credential is approved by the Director under section 9.

Application for approval

6( 1) An application for approval as a credentialing body or the reinstatement or amendment of a credentialing body’s approval shall be made to the Director on a form provided by the Director and shall be accompanied by the fees prescribed by regulation.

6( 2) If the Director is satisfied that an applicant meets the requirements prescribed by regulation, the Director may approve the applicant as a credentialing body or reinstate or amend the credentialing body’s approval.

6( 3) The Director shall not refuse to approve an applicant as a credentialing body or refuse to reinstate or amend the credentialing body’s approval without giving the applicant an opportunity to be heard.

6( 4) Subject to the regulations, the Director may make a decision under this section with respect to an applicant or credentialing body on the basis that a regulatory authority has made a substantially similar decision regarding that applicant or credentialing body and the Director may make the decision on this basis, despite any provision of this Act, without giving the applicant or credentialing body an opportunity to be heard.

Terms and conditions

7( 1) The Director may restrict, at any time, a credentialing body’s approval by imposing any terms and conditions that the Director considers appropriate on the approval, and the credentialing body shall comply with the terms and conditions.

7( 2) The Director shall not impose terms and conditions on a credentialing body’s approval without giving the credentialing body an opportunity to be heard.

Suspension or revocation of approval

8( 1) The Director may suspend or revoke a credentialing body’s approval

(a) if the credentialing body fails to comply with any term or condition of its approval, or

(b) if, in the opinion of the Director, the credentialing body violates or fails to comply with any provision of this Act or the regulations.

8( 2) The Director shall not suspend or revoke a credentialing body’s approval without giving the credentialing body an opportunity to be heard.

Division B

Credentials

Application for approval

9( 1) A credentialing body may apply to the Director, on a form provided by the Director, for approval of a credential entitling the use of a title or a variation or abbreviation of a title referred to in subsection 4(1) or (2) or for the reinstatement or amendment of an approval, and the application shall be accompanied by the fees prescribed by regulation.

9( 2) If the Director is satisfied that a credential meets the requirements prescribed by regulation, the Director may approve the credential or reinstate or amend the credential’s approval.

9( 3) The Director shall not refuse to approve a credential or reinstate or amend a credential’s approval without giving the credentialing body an opportunity to be heard.

9( 4) Subject to the regulations, the Director may make a decision under this section with respect to a credential on the basis that a regulatory authority has made a substantially similar decision regarding that credential and the Director may make the decision on this basis, despite any provision of this Act, without giving the credentialing body an opportunity to be heard.

Terms and conditions

10( 1) The Director may restrict, at any time, a credential’s approval by imposing any terms and conditions that the Director considers appropriate on the approval, and the credentialing body shall comply with the terms and conditions.

10( 2) The Director shall not impose terms and conditions on a credential’s approval without giving the credentialing body an opportunity to be heard.

Suspension or revocation of approval

11( 1) The Director may suspend or revoke a credential’s approval

(a) if the credentialing body fails to comply with any term or condition of the credential’s approval, or

(b) if, in the opinion of the Director, the credentialing body violates or fails to comply with any provision of this Act or the regulations.

11( 2) The Director shall not suspend or revoke a credential’s approval without giving the credentialing body an opportunity to be heard.

PART 4

POWERS AND DUTIES OF
CREDENTIALING BODIES

Credentialing programs

12 A credentialing body shall, in accordance with the terms and conditions of the credentialing body’s approval, this Act and the regulations, develop and conduct credentialing programs for the purposes of this Act and the regulations.

Issuance of credentials

13 A credentialing body may, in accordance with the terms and conditions of the credentialing body’s approval, this Act and the regulations, issue credentials approved by the Director under section 9 to an individual who successfully completes a program referred to in section 12.

Oversight of financial advisors and financial planners

14 A credentialing body shall, in accordance with the terms and conditions of the credentialing body’s approval, this Act and the regulations, oversee financial advisors, financial planners or both.

Agreement or arrangement

15( 1) A credentialing body may enter into an agreement or arrangement with a person to provide, on behalf of the credentialing body, any service with respect to overseeing financial advisors, financial planners or both.

15( 2) A credentialing body that enters into an agreement or arrangement under subsection (1) shall ensure that the person provides the services in accordance with the terms and conditions of the credentialing body’s approval, this Act and the regulations.

Fees

16 A credentialing body may, in accordance with the terms and conditions of the credentialing body’s approval, this Act and the regulations, establish and collect fees payable by financial advisors, financial planners or both.

List of financial advisors and financial planners

17 A credentialing body shall maintain and make available to the public in any manner the Director considers appropriate a current list of financial advisors, financial planners or both.

Annual return

18( 1) Within the time prescribed by regulation, a credentialing body shall provide the Director with an annual return, on a form provided by the Director, that contains the prescribed information and is accompanied by the fees prescribed by regulation.

18( 2) The Director may, at any time, require a credentialing body to provide additional information that the Director considers necessary within the period specified by the Director.

Annual fees

19 A credentialing body shall, in accordance with the regulations, pay annually to the Commission the fees prescribed by regulation that are required to maintain its approval as a credentialing body.

PART 5

RECORDKEEPING,
COMPLIANCE REVIEWS AND
NOTICE OF ADMINISTRATIVE PENALTY

Definition of “administrative penalty”

20 In this Part, “administrative penalty” means an administrative penalty imposed by the issuance of a notice of administrative penalty.

Recordkeeping

21( 1) A credentialing body, financial advisor or financial planner shall keep records and documents that are necessary for the proper recording of its business and affairs and shall keep any other records and documents that are otherwise required under this Act or the regulations.

21( 2) A credentialing body, financial advisor or financial planner shall keep the records and documents at a safe location and in a durable form.

21( 3) A credentialing body shall retain the records and documents for at least seven years after the date of the transaction to which the records or documents relate.

21( 4) A financial advisor or financial planner shall retain the records and documents for at least seven years after the date of the transaction to which the records or documents relate unless the financial advisor or financial planner is required to retain the records and documents for a longer period under any enactment, other than this Act, referred to in the definition “financial and consumer services legislation” in the Financial and Consumer Services Commission Act.

21( 5) A credentialing body, financial advisor or financial planner 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 records and documents that are required to be kept under this Act or the regulations, and

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

Compliance officers – appointment

22( 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.

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

Compliance reviews

23( 1) 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 credentialing body, financial advisor or financial planner during normal business hours,

(b) require a credentialing body, financial advisor or financial planner or an officer or employee of the credentialing body, financial advisor or financial planner to produce for inspection, examination, audit or copying any of the records or documents relating to the business or affairs of the credentialing body, financial advisor or financial planner,

(c) inspect, examine, audit or copy the records or documents relating to the business or affairs of the credentialing body, financial advisor or financial planner, and

(d) question a credentialing body, financial advisor or financial planner or an officer or employee of the credentialing body, financial advisor or financial planner in relation to the business or affairs of the credentialing body, financial advisor or financial planner.

23( 2) In carrying out a compliance review, a compliance officer may

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

(b) reproduce any record or document, and

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

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

23( 4) A compliance officer shall not enter a private dwelling under subsection (1) unless the compliance officer has the consent of the occupier or has obtained an entry warrant under the Entry Warrants Act.

23( 5) 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.

Removal of documents

24( 1) A compliance officer who removes 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 records or documents removed and return the records or documents as soon as possible after the making of copies or extracts.

24( 2) A copy or extract of any 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.

Obstruction

25( 1) No person shall interfere with or obstruct 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.

25( 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) unless an entry warrant has been obtained.

Misleading statements

26 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 the compliance officer’s duties under this Act or the regulations.

Fees and expenses payable for compliance review

27 The Commission may, in circumstances prescribed by regulation, require a credentialing body, financial advisor or financial planner 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.

Administrative penalty officers – appointment

28 For the purposes of promoting compliance with this Act and the regulations or preventing a person from deriving, directly or indirectly, any economic benefit as a result of a contravention of or failure to comply with this Act or the regulations, the Commission may appoint in writing a person as an administrative penalty officer to impose administrative penalties by issuing a notice of administrative penalty.

Imposition of administrative penalty

29 An administrative penalty officer may impose an administrative penalty by issuing a notice of administrative penalty if the administrative penalty officer

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

( i) 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, or

( ii) a written undertaking made by that person to the Commission, the Director or the Tribunal under this Act or the regulations, and

(b) is satisfied that a hearing is not necessary to determine whether the person has contravened or failed to comply with this Act or the regulations.

Maximum amount of administrative penalty

30 The amount of an administrative penalty shall not exceed

(a) $10,000 for an individual, and

(b) $25,000 for a person other than an individual.

Determination of amount of administrative penalty

31 In determining the amount of an administrative penalty, an administrative penalty officer shall consider the following matters:

(a) whether the person is an individual or a person other than an individual;

(b) the extent to which the person tried to mitigate any loss or take any remedial action;

(d) the history of the person with respect to any prior contraventions or failures to comply within the five-year period before the contravention or failure to comply;

(e) the duration of the contravention or failure to comply;

(f) the nature of the contravention or failure to comply;

(g) the extent of the actual or potential harm to others resulting from the contravention or failure to comply;

(h) the risk of harm to public confidence in a regulated activity resulting from the contravention or failure to comply; and

(i) any other matter prescribed by regulation.

Notice of administrative penalty

32( 1) A notice of administrative penalty shall include the following information:

(a) the name of the person required to pay the administrative penalty;

(b) a description of the contravention or failure to comply;

(d) the amount of the administrative penalty and the consequences for failing to respond to the notice;

(e) how and when to pay the administrative penalty;

(f) a statement that the person may request a review of the administrative penalty under section 35; and

(g) any other information prescribed by regulation.

32( 2) A notice of administrative penalty shall not be issued more than one year after the administrative penalty officer first had knowledge of the contravention or failure to comply.

Withdraw notice of administrative penalty

33 An administrative penalty officer may withdraw a notice of administrative penalty if, in the opinion of the administrative penalty officer, the withdrawal of the notice is warranted in the circumstances.

Extend time for payment

34 An administrative penalty officer may extend the time for payment of an administrative penalty if, in the opinion of the administrative penalty officer, the extension is reasonable.

Review of administrative penalty

35( 1) A person who receives a notice of administrative penalty may request that the Director review the administrative penalty by applying to the Director on a form provided by the Director within 30 days after the notice was received.

35( 2) The Director shall not make a decision with respect to a review without giving the person who received the notice of administrative penalty an opportunity to be heard.

35( 3) The Director may confirm or revoke the administrative penalty or may vary the amount of the administrative penalty.

35( 4) The decision of the Director is not subject to appeal to the Tribunal.

Payment of administrative penalty

36( 1) Subject to subsection (2), a person who receives a notice of administrative penalty shall pay the administrative penalty within 30 days after the notice was received unless the time is extended under section 34.

36( 2) If a person who receives a notice of administrative penalty applies for a review under section 35 and the Director confirms the administrative penalty or varies the amount of the administrative penalty, the person shall pay the administrative penalty within 30 days after the Director makes the decision or within a longer period the Director may allow.

36( 3) An administrative penalty is payable to the Commission.

Deemed contravention or failure

37 A person who receives a notice of administrative penalty is deemed to have contravened or failed to comply with the provision of this Act or the regulations specified in the notice of administrative penalty if

(a) the person fails to request a review by the Director of the administrative penalty under section 35 within the time provided under that section, or

(b) the person requests a review and the Director confirms the administrative penalty or varies the amount of the administrative penalty.

Filing notice of administrative penalty with the Court

38( 1) The Commission may file a certified copy of a notice of administrative penalty or a decision of the Director under section 35 with a clerk of the Court, and, on being filed, that notice or decision has the same force and effect as if it were a judgment of the Court.

38( 2) If a notice of administrative penalty or a decision of the Director is filed under subsection (1), the administrative penalty required to be paid to the Commission under the notice or decision may be collected as a judgment of the Court for the recovery of a debt.

Misleading statements

39 No person shall knowingly make a false or misleading statement, either orally or in writing, to an administrative penalty officer while the administrative penalty officer is engaged in carrying out the administrative penalty officer’s duties under this Act or the regulations.

PART 6

INVESTIGATIONS

Director’s order – provision of information

40( 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 a jurisdiction.

40( 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 produce records or documents or classes of records or documents specified or otherwise described in the order within the time or at the intervals specified in the order:

(a) a credentialing body, financial advisor or financial planner;

(b) any person that is not a credentialing body and that is, or the Director has reason to suspect is, carrying out a regulated activity; or

(c) any person who is not a financial advisor or financial planner and who is, or the Director has reason to suspect is, carrying out a regulated activity.

40( 3) The Director may require that the authenticity, accuracy or completeness of information provided or of a record or document or a class of records or documents produced in accordance with an order under subsection (2) be verified by affidavit.

40( 4) The Director may require that the information provided or that the records or documents or classes of records or documents produced in accordance with an order made under subsection (2) be delivered in electronic form if the information or the records or documents or classes of records or documents are already available in that form.

Investigation order

41( 1) The Commission may, by order, appoint a person as an investigator to conduct 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 a jurisdiction.

41( 2) In its order, the Commission shall specify the scope of an investigation referred to in subsection (1).

Powers of investigator

42( 1) An investigator may, with respect to a credentialing body, financial advisor, financial planner or other person that is the subject of the investigation, investigate, inspect and examine

(a) the business or affairs of that credentialing body, financial advisor, financial planner or other person,

(b) any records, documents or communications connected with that credentialing body, financial advisor, financial planner or other person, and

(c) any property or assets owned, acquired or disposed of, in whole or in part, by that credentialing body, financial advisor, financial planner or other person or by a person acting on behalf of or as agent for that credentialing body, financial advisor, financial planner or other person.

42( 2) For the purposes of an investigation under this Part, an investigator may inspect and examine any record, document or thing in the possession or control of the credentialing body, financial advisor, financial planner or other person in respect of which the investigation is ordered.

42( 3) An investigator conducting an investigation under this Part may, on production of the order appointing the investigator,

(a) enter the business premises of any credentialing body, financial advisor, financial planner or other person named in the order during normal business hours and inspect and examine any record, document or thing that is used in the business of that credentialing body, financial advisor, financial planner or other person and that relates to the order,

(b) require the production of any record, document or thing referred to in paragraph (a) for inspection or examination, and

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

42( 4) An inspection or examination under this section shall be completed as soon as possible, and the records, documents or things shall be returned promptly to the credentialing body, financial advisor, financial planner or to the other person that produced them.

42( 5) No credentialing body, financial advisor, financial planner or other person shall withhold, destroy, conceal, alter or refuse to give any information or withhold, destroy, conceal, alter or refuse to produce any record, document or thing reasonably required under subsection (3) by an investigator.

Power to compel evidence

43( 1) An investigator conducting an investigation under this Part has the same power to summon and enforce the attendance of witnesses, compel witnesses to give evidence under oath or in any other manner and compel witnesses to produce records, documents and things or classes of records, documents and things as the Court has for the trial of civil actions.

43( 2) On the application of an investigator to the Court, the failure or refusal of a person to attend, take an oath, answer questions or produce records, documents and things or classes of 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.

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

43( 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

44 Every investigator, in carrying out the investigator’s 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

45( 1) On request to an investigator by the credentialing body, financial advisor, financial planner or other person that, at the time of the seizure, was in lawful possession of records, documents or things seized under this Part, the records, documents or things seized shall, at a time and place mutually convenient to the investigator and the credentialing body, financial advisor, financial planner or other person, be made available to them for consultation and copying.

45( 2) If records, documents or things are seized under this Part and the matter for which the records, documents or things were seized is concluded, the investigator shall return those records, documents or things to the credentialing body, financial advisor, financial planner or other person that was in lawful possession of them at the time of the seizure within 60 days after the day the matter is concluded.

45( 3) If records, documents or things are seized under this Part and the credentialing body, financial advisor, financial planner or other person that was in lawful possession of the records, documents or things at the time of the seizure alleges that the records, documents or things are not relevant in respect of the matter for which they were seized, that credentialing body, financial advisor, financial planner or other person may apply by notice of motion to the Court for the return of the records, documents or things.

45( 4) On a motion under subsection (3), the Court shall order the return of any records, documents or things that it determines are not relevant to the matter for which they were seized to the credentialing body, financial advisor, financial planner or other person that was in lawful possession of the records, documents or things at the time of the seizure.

Report of investigation

46( 1) If an investigation has been conducted under this Part, the investigator shall, at the request of the Commission, provide the Commission with 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.

46( 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

47( 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 record, document or other thing; or

(e) the fact that any record, document or other thing was produced.

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

47( 3) An investigator conducting 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

48 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 7

OFFENCES, PENALTIES,
ENFORCEMENT AND REMEDIES

Offences generally

49( 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, 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.

49( 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.

49( 3) A person charged with an offence under this Act or the regulations is not liable to an administrative penalty imposed by an administrative penalty officer under section 29 in respect of the same incident that gave rise to the charge.

Misleading statements

50 In carrying on a regulated activity, no person shall make a statement that the person knows or reasonably ought to know is false or misleading or does not state a fact that is required to be stated or that is necessary to make the statement not misleading.

Orders in the public interest

51( 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 an approval of a credentialing body or an approval of a credential be suspended or restricted for the period specified in the order or be revoked, or that terms and conditions be imposed on the approval;

(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.

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

51( 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.

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

51( 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).

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

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

51( 8) The Commission shall as soon as possible 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

52( 1) On the application of the Commission and after conducting a hearing, the Tribunal may order a person to pay an administrative penalty of not more than $25,000, in the case of an individual, and of not more than $100,000, in the case of a person other than an individual, 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.

52( 2) Subject to subsection (3), 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.

52( 3) The Tribunal shall not make an order under this section if an administrative penalty has been imposed by an administrative penalty officer under section 29 in respect of the same matter.

Directors and officers

53 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 51.

Resolution of administrative proceedings

54( 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.

54( 2) An agreement approved, a written undertaking accepted or a decision made 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

55 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 8

GENERAL

List of credentialing bodies and approved credentials

56 The Director shall maintain a list of credentialing bodies and the approved credentials they issue and shall make the list available to the public by posting it on the Commission’s website or in any other manner the Director considers appropriate.

Appeals

57( 1) A person who is directly affected by a decision of the Director, other than a decision under section 35, may appeal it to the Tribunal within 30 days after the date of the decision.

57( 2) Despite subsection (1), the Tribunal may extend the period for appealing a decision, before or after the expiration of the time, if it is satisfied that there are reasonable grounds for an extension.

57( 3) The Director is a party to an appeal of a decision of the Director under this section.

57( 4) The Tribunal may, by order, confirm, vary or rescind the whole or any part of a decision under appeal or make any other decision that the Tribunal considers appropriate.

57( 5) Despite the fact that an appeal is held under this section, a decision under appeal takes effect immediately, but the Tribunal may grant a stay of the decision until the disposition of the appeal.

Certificate evidence

58 A certificate purporting to be signed by the Director or a person designated by the Commission certifying all or any of the following facts is admissible in evidence and is proof, in the absence of evidence to the contrary, of the facts stated in the certificate without proof of the appointment, authority or signature of the person who signed the certificate:

(a) that a person named in the certificate was or was not approved as a credentialing body or that a credential was or was not approved;

(b) that a credentialing body or credential was approved on a date set out in the certificate;

(d) that an approval was made subject to terms and conditions.

Conflict with the Right to Information and Protection of Privacy Act

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

Administration

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

Regulation and rules

61( 1) The Lieutenant-Governor in Council may make regulations and the Commission may make rules

(a) prescribing any person or class of persons for the purposes of paragraph 2(1)(b);

(b) prescribing terms and conditions for the purposes of subsection 2(2);

(d) prohibiting titles for the purposes of subsections 4(1) and (2);

(e) governing decisions made under subsections 6(4) and 9(4);

(f) prescribing requirements that must be met by applicants for the purposes of subsection 6(2), including requirements relating to

( i) the applicant’s governance structure and practices, and

( ii) disciplinary processes the applicant must have in place for financial advisors, financial planners or both;

(g) for the purposes of subsection 9(2), prescribing requirements for credentials, including requirements relating to

( i) educational requirements,

( ii) examination requirements,

( iii) codes of ethics and professional standards, and

( iv) continuing education requirements;

(h) prescribing requirements that must be met by credentialing bodies with respect to overseeing financial advisors, financial planners or both;

(i) for the purposes of section 16, prescribing requirements that must be met by credentialing bodies with respect to establishing and collecting fees payable by financial advisors, financial planners or both;

(j) for the purposes of section 18, prescribing information to be contained in an annual return of a credentialing body, prescribing the time within which a credentialing body must provide an annual return to the Director and prescribing the fees for the provision of an annual return to the Director;

(k) governing fees for the purposes of section 19, including prescribing the amount of fees or the manner of determining fees and prescribing the manner in which and the time within which fees must be paid;

(l) requiring, for the purposes of subsection 21(1), that certain records or documents be kept;

(m) prescribing circumstances, fees and expenses for the purposes of section 27;

(n) prescribing any other matter for the purposes of paragraph 31(i);

(o) prescribing any other information for the purposes of paragraph 32(1)(g);

(p) governing the practice and procedure for investigations under Part 6;

(q) authorizing disclosures of information for the purposes of subsection 47(2);

(r) governing the method by which information or material be submitted, provided, produced, delivered, 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, including the use of an electronic or computer-based system;

(s) establishing requirements for and procedures in respect of the use of an electronic or computer-based system referred to in paragraph (r);

(t) prescribing the fees that may be charged by a person that operates an electronic or computer-based system referred to in paragraph (r);

(u) defining any word or expression used in but not defined in this Act for the purposes of this Act, the regulations or both;

(v) respecting any other matter that may be necessary for the proper administration of this Act.

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

61( 3) Subject to the approval of the Minister, the Commission, concurrently with making a rule, may make a regulation that amends or repeals any provision of a regulation made by the Lieutenant-Governor in Council under this Act or by the Commission under this subsection that, in the opinion of the Commission, is necessary or advisable to effectively implement the rule.

61( 4) A regulation made under subsection (3) is not effective before the rule referred to in that subsection comes into force.

61( 5) Subject to subsection (4), a regulation made under subsection (3) may be retroactive in its operation.

61( 6) A regulation or rule authorized by this section may incorporate by reference, in whole or in part, any laws, any by-laws or other regulatory instruments or any codes, standards, procedures or guidelines as they are amended from time to time before or after the making of the regulation or the rule or as they read at a fixed time and may require compliance with any law, any by-law or other regulatory instrument or any code, standard, procedure or guideline so incorporated.

61( 7) Regulations or rules may vary for or be made in respect of different persons, matters or things or different classes or categories of persons, matters or things.

61( 8) A regulation or a rule may be general or particular in its application, may be limited as to time or place or both and may exclude any place from the application of the regulation or rule.

61( 9) The Regulations Act does not apply to the rules made under this Act.

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

Notice and publication of rules

62( 1) As soon as the circumstances permit after a rule is made under section 61, the Commission shall

(a) publish the rule electronically, and

(b) publish in The Royal Gazette notice of the rule in accordance with the regulations made under the Financial and Consumer Services Commission Act.

62( 2) As soon as possible after the Commission makes a rule, it shall make a copy of the rule available for public inspection at each of the Commission’s offices during the normal business hours of the Commission.

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

Changes by Secretary of the Commission

63 The Secretary of the Commission may make changes respecting form, style, numbering and typographical, clerical or reference errors in a rule made by the Commission without changing the substance of the rule if the changes are made before the date the rule is published in accordance with paragraph 62(1)(a).

Consolidated rules

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

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

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

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

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

PART 9

CONSEQUENTIAL AMENDMENTS
AND COMMENCEMENT

Financial and Consumer Services Commission Act

65( 1) Section 1 of the Financial and Consumer Services Commission Act, chapter 30 of the Acts of New Brunswick, 2013, is amended

(a) in the definition “financial and consumer services legislation” by adding the following after paragraph (i):

(i.1) the Financial Advisors and Financial Planners Title Protection Act,

(b) in the definition “regulator”

( i) in paragraph (h) of the English version by striking out “and” at the end of the paragraph;

( ii) in paragraph (i) by striking out the period at the end of the paragraph and substituting a comma followed by “and”;

( iii) by adding after paragraph (i) the following:

( j) the Director of Financial Advisors and Financial Planners appointed under paragraph 18(2)(l).

65( 2) Subsection 18(2) of the Act is amended

(a) in paragraph (j) of the English version by striking out “and” at the end of the paragraph;

(b) in paragraph (k) by striking out the period at the end of the paragraph and substituting a semicolon followed by “and”;

(l) a Director of Financial Advisors and Financial Planners.

65( 3) Subsection 21(6) of the Act is amended by adding after paragraph (d) the following:

(d.1) paragraph 51(1)(i) of the Financial Advisors and Financial Planners Title Protection Act;

Commencement

66 This Act or any provision of it comes into force on a day or days to be fixed by proclamation.

SCHEDULE A

Provision of the Act

2(2)
3(4)
4(1)
4(2)
5(1)
5(2)
7(1)
10(1)
12
14
15(2)
17
18(1)
19
21(1)
21(2)
21(3)
21(4)
21(5)(a)
21(5)(b)
25(1)
26
39
42(5)
50
51(3)