Bill 12 - An Act Respecting Young Persons, Digital Markets and Technology Use

BILL 12

An Act Respecting Young Persons, Digital Markets and Technology Use

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

PART 1

YOUNG CONSUMERS IN DIGITAL MARKETS ACT

Enactment of the Young Consumers in Digital Markets Act

1 The Young Consumers in Digital Markets Act is enacted as follows:

PART 1

DEFINITIONS, PURPOSE AND
APPLICATION

Definitions

1 The following definitions apply in this Act.

“administrative penalty” means a penalty imposed by the issuance of a notice of administrative penalty by an administrative penalty officer under section 25 or by an order of the Tribunal under section 50. (pénalité administrative)

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

“consumer agreement” means an agreement, including any transaction, purchase, agreement to purchase or agreement to comply with terms and conditions, entered into between a provider and a young consumer or the young consumer’s parent or guardian respecting the young consumer’s access to or use of a digital good, digital service or digital platform for personal or family purposes. (convention de consommation)

“consumer interaction” means an interaction between a provider and a young consumer respecting the young consumer’s access to or use of a digital good, digital service or digital platform for personal or family purposes and includes an interaction occurring in connection with the advertising, access, provision, operation, promotion, recommendation, display or use of that good, service or platform. (interaction entre fournisseur et consommateur)

“Court of King’s Bench” means The Court of King’s Bench of New Brunswick and includes a judge of that court. (Cour du Banc du Roi)

“digital good” means data, content, software or any other intangible good in digital form that is available and used electronically, including, but not limited to, an ebook, an audiobook, a downloaded movie, downloaded music, a downloaded game, an application, a virtual item, digital currency and a digital skin. (produit numérique)

“digital platform” means a website, application, online service or any other digital system that enables users to access, create, share, view, purchase, exchange, receive, discover or interact with content, goods, services or other users, including, but not limited to, Instagram, Facebook, TikTok, Snapchat, Discord, YouTube and Roblox, but excludes a website of a business that is used as a storefront for physical products. (plateforme numérique)

“digital service” means a service that enables users to access, create, share, view, purchase, exchange, store, process, listen to or interact with digital content or information that is available and used electronically, including, but not limited to, cloud storage, video streaming, music streaming, gaming services, AI services, messaging services and social media services. (service numérique)

“Director” means the Director of Digital Markets for Young Consumers 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)

“material fact” means any information that would reasonably be expected to affect a decision of a young consumer in relation to a consumer agreement or a consumer interaction. (fait important)

“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)

“provider” means a person who provides, directly or indirectly, a digital good, digital service or digital platform, including an employee or agent of the person but excluding the parent or guardian of a young consumer who is provided with the digital good, digital service or digital platform. (fournisseur)

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

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

“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)

“Small Claims Court” means the Small Claims Court of New Brunswick and includes an adjudicator of that court. (Cour des petites créances)

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

“young consumer” means a child under 16 years of age who is a party to a consumer agreement or who participates in a consumer interaction. (jeune consommateur)

Purpose

2 The purpose of this Act and the regulations is to

(a) create conditions that foster the fair treatment of young consumers by regulating consumer agreements and consumer interactions,

(b) protect young consumers from unfair, deceptive and exploitative practices in digital markets, and

Application

3( 1) This Act and the regulations apply to providers who

(a) know or ought reasonably to know that young consumers are using, accessing or interacting with or are likely to be using, accessing or interacting with the digital goods, digital services and digital platforms that the provider is providing, or

(b) provide digital goods, digital services or digital platforms that target young consumers.

3( 2) This Act or the regulations or any provision of this Act or the regulations does not apply to

(a) any person or class of persons exempted from the application of this Act or the regulations or any provision of this Act or the regulations by an order of the Director made under subsection 4(1),

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

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

Exemptions

4( 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 the regulations or any provision of this Act or the regulations.

4( 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.

4( 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.

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

Waiver or release of rights under this Act or the regulations

5( 1) No person shall request or require a person to waive or release the person’s rights, benefits or protections under this Act or the regulations except to the extent that the waiver or release is expressly permitted by this Act or the regulations.

5( 2) Any waiver or release given by a person of the person’s rights, benefits or protections under this Act or the regulations is void except to the extent that the waiver or release is expressly permitted by this Act or the regulations.

5( 3) Any limit imposed on a person’s rights, benefits or protections under this Act or the regulations is void except to the extent that the limit is expressly permitted by this Act or the regulations.

Other remedies not precluded

6 Any remedy under this Act is in addition to and does not derogate from any other legal, equitable or statutory remedy.

PART 2

UNFAIR PRACTICES

Unfair practices

7 It is an unfair practice for a provider to

(a) make a representation that may reasonably deceive or mislead a young consumer with respect to a consumer agreement or consumer interaction,

(b) exert undue pressure or influence on a young consumer to be a party to a consumer agreement,

(c) take advantage of a young consumer’s inability to understand the nature or effect of a consumer agreement, the language in which the consumer agreement is drafted or any other matter in relation to the agreement,

(d) fail to disclose a material fact in relation to a consumer agreement,

(e) use exaggeration, innuendo or ambiguity concerning a material fact in relation to a consumer agreement,

(f) be a party to a consumer agreement if the provider knows or ought to know that the young consumer is unable to receive any reasonable benefit from the digital goods or digital services that the provider offers,

(g) include in a consumer agreement terms and conditions that are harsh, oppressive or excessively one sided,

(h) make a representation to a young consumer that misrepresents the purpose of any charge or proposed charge,

(i) engage in a practice that is misleading, deceptive or exploitative or materially impairs the young consumer’s ability to make an informed decision in relation to a consumer agreement or a consumer interaction,

(j) use a design feature, interface, mechanism or practice that has the purpose or effect of encouraging or inducing a young consumer to make a purchase or incur a charge through deception or undue influence,

(k) design or operate a digital service or digital platform in a manner that discourages or impedes a young consumer from disengaging from, stopping or pausing its use,

(l) use a reward, incentive, scarcity message, countdown, streak, ranking or similar mechanism that creates a false, misleading or unreasonable sense of urgency or scarcity for the purpose of inducing a young consumer to make a purchase or incur a charge,

(m) configure default settings for a young consumer that are misleading, deceptive or excessively one sided in favour of the provider,

(n) send notifications, prompts or communications to a young consumer during prescribed hours in a manner that encourages continued engagement with a digital good, digital service or digital platform,

(o) use personal information, behavioural data or profiling to engage in advertising that targets the young consumer when the advertising is false or misleading or is intended to improperly influence the young consumer’s purchasing decisions, or

(p) engage in a practice prescribed by regulation.

Prohibition on engaging in an unfair practice

8( 1) No person shall engage in an unfair practice.

8( 2) In determining whether a person has engaged in an unfair practice, the general impression given by the alleged unfair practice may be considered as well as the literal meaning of the representation or the terms and conditions of the consumer agreement.

8( 3) If it is alleged that a provider has engaged in an unfair practice, the onus is on the provider to prove that the provider has not engaged in the unfair practice.

Prohibition on advertisements containing unfair practices

9( 1) No person shall publish a provider’s advertisement for goods or services if the advertisement contains an unfair practice.

9( 2) Subsection (1) does not apply to a person who publishes a provider’s advertisement in good faith and in the ordinary course of business.

Circumstances surrounding an unfair practice

10( 1) An unfair practice may occur

(a) before, after or at the time a consumer agreement is entered into or a consumer interaction takes place,

(b) whether or not a consumer agreement is entered into, and

10( 2) An unfair practice may consist of a single act or omission.

10( 3) An unfair practice is an unfair practice for the purposes of this Act even if

(a) it is not directed at a specific young consumer and does not occur in the course of or for the purposes of a specific consumer agreement or consumer interaction but is directed to young consumers generally, and

(b) there is no privity of contract between the provider and any specific young consumer affected by the unfair practice.

Interpretation

11 For the purposes of sections 12 to 17, a young consumer includes the parent or guardian of the young consumer.

Cancellation when there has been an unfair practice

12( 1) A young consumer may cancel, at no cost or penalty to the young consumer, a consumer agreement to which the young consumer is a party, whether the agreement is documented in writing or oral, if the provider who is a party to the agreement engaged in an unfair practice regarding the consumer agreement or consumer interaction.

12( 2) Subsection (1) applies whether the unfair practice occurred before, after or at the time the consumer agreement was entered into or the consumer interaction took place.

12( 3) A young consumer is entitled to recover the amount by which the young consumer’s payment under the consumer agreement exceeds the value of the digital goods or digital services or to recover damages, or both, if cancellation of the consumer agreement is not possible because the return or restitution of the digital goods or cancellation of the digital services is no longer possible.

12( 4) When a young consumer cancels a consumer agreement, the cancellation operates to cancel, as if they never existed,

(a) the consumer agreement,

(b) all related consumer agreements, and

12( 5) The cancellation right is in addition to, and does not affect, any other right or remedy the young consumer has under a consumer agreement or at law.

12( 6) If a consumer agreement is cancelled, the provider shall refund to the young consumer all consideration paid by the young consumer under the agreement and any related consumer agreement, whether paid to the provider or another person, within 15 days after the date of cancellation.

Notice

13( 1) A young consumer who wishes to cancel a consumer agreement under subsection 12(1) or to seek recovery under subsection 12(3) is required to give notice within one year after the consumer agreement is entered into.

13( 2) A young consumer may give notice in any manner as long as the notice meets any requirements prescribed by regulation and indicates

(a) the young consumer’s intention

( i) to cancel the consumer agreement, or

( ii) to seek recovery if cancellation is not possible, and

(b) the young consumer’s reasons for taking the actions set out in paragraph (a).

13( 3) A young consumer may give a notice to a provider by

(a) email,

(b) personal service, or

(c) sending it to the provider by any other method, electronically or otherwise, that permits the young consumer to provide evidence of the cancellation.

13( 4) A notice that is given in accordance with paragraph (3)(c) shall be deemed to have been given when sent.

13( 5) The young consumer may give the notice to the provider who is a party to the consumer agreement at the address set out in the agreement, or, if the young consumer did not receive a written copy of the agreement, the address of the provider was not set out in the agreement or the agreement was not documented in writing, the young consumer may give the notice

(a) at any address of the provider on record with the Commission or the Government of New Brunswick, or

(b) at an address of the provider known to the young consumer.

13( 6) If notice is given and a satisfactory response is not received within the period of time prescribed by regulation, the young consumer may commence an action in the Court of King’s Bench under section 14.

Application to Court of King’s Bench

14( 1) A young consumer who has entered into a consumer agreement or participated in a consumer interaction with a provider who has engaged in or consented to an unfair practice in relation to the consumer agreement or consumer interaction may apply to the Court of King’s Bench to commence an action against the provider if the unfair practice has caused the young consumer damage, harm or loss.

14( 2) In an action commenced under subsection (1), the Court of King’s Bench may

(a) declare that the practice is an unfair practice,

(b) award damages,

(d) make an order for

( i) specific performance with respect to the consumer agreement or consumer interaction,

( ii) the recovery of property or funds, or

( iii) the cancellation of the consumer agreement,

(e) grant an order in the nature of an injunction restraining the provider from engaging in the unfair practice, or

(f) give any directions and grant any other relief the Court of King’s Bench considers appropriate.

14( 3) In determining whether to grant any relief and the nature and extent of the relief, the Court of King’s Bench shall consider whether the young consumer made a reasonable effort to minimize any damage resulting from the unfair practice and to resolve the dispute with the provider before commencing the action.

14( 4) The Court of King’s Bench may award costs in accordance with the Rules of Court.

Application to Small Claims Court

15 Subject to the jurisdiction of the Small Claims Court, a young consumer may apply to the Small Claims Court to commence an action under subsection 14(1).

Powers of the court

16( 1) Oral evidence respecting an unfair practice is admissible in an action commenced under section 14 despite the existence of a consumer agreement documented in writing and despite the fact that the oral evidence relates to a representation in respect of a term, condition or undertaking that is not provided for in the consumer agreement.

16( 2) The court may disregard the requirement that the young consumer give notice under subsection 13(1) or any requirement relating to the notice if it considers that it is in the interest of justice to do so.

Liability

17( 1) Each person who engages in an unfair practice is jointly and severally liable, with the provider who is a party to a consumer agreement or who participated in the consumer interaction that was subject to the unfair practice, for any amount to which the young consumer is entitled.

17( 2) If a consumer agreement to which section 12 applies has been assigned or if any right to payment under that consumer agreement has been assigned, the liability of the person to whom it has been assigned is limited to the amount paid to that person by the young consumer.

17( 3) For greater certainty, for the purposes of this Act, an act or omission of an employee or agent of a person is deemed also to be an act or omission of the person if the act or omission occurred

(a) in the course of the employee’s employment with the person, or

(b) in the course of the agent’s exercising the powers or performing the duties on behalf of the person under their agency relationship.

PART 3

RECORD KEEPING AND
ADVERTISING

Record keeping

18 A provider 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 relating to the business or affairs of the provider with respect to activities governed by this Act or the regulations, and

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

False, misleading or deceptive advertisement

19( 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 an activity governed by this Act or the regulations.

19( 2) No person shall publish or otherwise distribute an advertisement, circular, pamphlet or similar material prepared or used in respect of an activity governed by this Act or the regulations that is on the whole misleading even if it does not contain a particular statement that is false, misleading or deceptive.

19( 3) If, in the opinion of the Director, a person has made a false, misleading or deceptive statement in any advertisement, circular, pamphlet or similar material, the Director may order the immediate cessation of the use of that material.

19( 4) If, in the opinion of the Director, a person has published or otherwise distributed an advertisement, circular, pamphlet or similar material that is on the whole misleading, the Director may order the immediate cessation of the use of that material.

19( 5) The Director may order the immediate cessation of the use of any advertisement, circular, pamphlet or similar material that, in the opinion of the Director, contravenes or fails to comply with this Act or the regulations.

PART 4

COMPLIANCE REVIEWS

Compliance review

20( 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.

20( 2) The Commission shall issue to every compliance officer a certificate of appointment, and every compliance officer, in carrying out their duties under this Act or the regulations, shall produce their certificate of appointment on request.

20( 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 provider during normal business hours,

(b) require a provider to produce for inspection, examination, auditing or copying any books, records or documents relating to the business or affairs of the provider,

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

(d) question a provider in relation to the business or affairs of the provider.

20( 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.

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

20( 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.

20( 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.

20( 8) The Commission may, in circumstances prescribed by regulation, require a provider 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

21( 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 the circumstances permit after the making of copies or extracts.

21( 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 to compliance officer

22 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 their duties under this Act or the regulations.

Obstruction of compliance officer

23( 1) No person shall obstruct or interfere with a compliance officer who is carrying out or attempting to carry out a compliance review 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.

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

PART 5

ADMINISTRATIVE PENALTIES

Administrative penalty officers – appointment

24 The Commission may appoint in writing a person as an administrative penalty officer for the purpose of

(a) promoting compliance with this Act and the regulations, or

(b) preventing a person from deriving, directly or indirectly, an economic benefit from the contravention of or failure to comply with this Act or the regulations.

Administrative penalty by notice

25 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 a provision of 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

26 The amount of an administrative penalty imposed by an administrative penalty officer 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

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

(a) whether the contravention of or failure to comply with this Act or the regulations involved an individual or a person other than an individual;

(b) the nature and duration of the contravention or failure to comply;

(d) the economic benefit that the person derived or reasonably could have expected to derive from the contravention or failure to comply, directly or indirectly;

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

(f) the risk of harm to public confidence in an activity governed by this Act or the regulations resulting from the contravention or failure to comply;

(g) whether the person had contravened or failed to comply with a provision of this Act or the regulations within the five-year period before the contravention or failure to comply; and

(h) any other matter prescribed by regulation.

Notice of administrative penalty

28( 1) A notice of administrative penalty by an administrative penalty officer shall include the following information:

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

(b) the provision of this Act or the regulations that the person contravened or failed to comply with and a description of that contravention or failure to comply;

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

(e) the date by which the administrative penalty is required to be paid and how to pay the administrative penalty;

(f) a statement that the person may request a review of the administrative penalty in accordance with subsection 32(1); and

(g) any other information prescribed by regulation.

28( 2) A notice of administrative penalty shall not be issued if the contravention or failure to comply is the subject of a hearing before the Tribunal.

28( 3) 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.

Withdrawal of notice of administrative penalty

29 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.

Time for paying or disputing administrative penalty

30 Subject to section 31, no later than the date set out in a notice of administrative penalty, the person who received the notice shall

(a) pay the administrative penalty, or

(b) apply for a review of the administrative penalty under section 32.

Extension of time for paying administrative penalty

31 An administrative penalty officer may extend the time set out in a notice of administrative penalty for paying the administrative penalty if, in the opinion of the administrative penalty officer, the extension is reasonable.

Review of administrative penalty

32( 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 no later than the date set out in the notice of administrative penalty.

32( 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.

32( 3) The Director may confirm or rescind the administrative penalty or may vary the amount of the administrative penalty.

32( 4) If the Director confirms the administrative penalty or varies the amount of the administrative penalty, the person who received the notice of administrative penalty shall pay the administrative penalty within 30 days after the Director makes the decision or within a longer period specified by the Director.

32( 5) The decision of the Director under this section is not subject to appeal to the Tribunal.

Administrative penalty payable to Commission

33 An administrative penalty imposed by an administrative penalty officer is payable to the Commission.

Filing notice or decision – Court of King’s Bench

34( 1) If a person who is required to pay an administrative penalty under section 30 or subsection 32(4) fails to do so, the amount of the administrative penalty constitutes a debt due to the Commission.

34( 2) The Commission may file a certified copy of a notice of administrative penalty or of a decision of the Director under section 32 with a clerk of the Court of King’s Bench, and, on being filed, the notice or decision has the same force and effect as if it were a judgment of the Court of King’s Bench.

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

Misleading statements to administrative penalty officer

35 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 officer’s duties under this Act or the regulations.

PART 6

INVESTIGATIONS

Provision of information to Director

36( 1) By an order applicable generally or to one or more persons named or otherwise described in the order, the Director may require a provider or former provider 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 period or at the intervals specified in the order.

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

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

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

36( 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 under an order under subsection (1) be verified by affidavit.

36( 4) The Director may require that the information provided or that the books, records or documents produced be delivered in electronic form if the information or the books, records or documents are already available in that form.

Investigation order

37( 1) The Commission may make an order appointing 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 another jurisdiction.

37( 2) In its order, the Commission shall specify the scope of the investigation to be carried out.

Powers of investigator

38( 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.

38( 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.

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

(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.

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

38( 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

39( 1) An investigator conducting 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 King’s Bench has for the trial of civil actions.

39( 2) On the application of an investigator to the Court of King’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.

39( 3) A person giving evidence at an investigation may be represented by legal counsel.

39( 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

40 Every investigator in carrying out their 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

41( 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 that person and the investigator, be made available for consultation and copying by that person.

41( 2) If property is seized and the matter for which the property was seized is concluded, the investigator shall return the property to the person who was in lawful possession of it at the time of the seizure within 60 days after the day that the matter is concluded.

41( 3) If property is seized and the person who was in lawful possession of the property at the time of the seizure alleges that the property is not relevant in respect of the matter for which it was seized, the person may apply by notice of motion to the Court of King’s Bench for the return of the property.

41( 4) On a motion under subsection (3), the Court of King’s Bench shall order the return of any property that it determines is not relevant to the matter for which it was seized to the person who was in lawful possession of the property at the time of the seizure.

Report of investigation

42( 1) At the request of the Commission, an investigator who made an investigation shall 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.

42( 2) A report that is provided to the Commission is privileged and is inadmissible in evidence in any action or other proceeding.

Prohibition against disclosure

43( 1) For the purpose of protecting the integrity of an investigation, 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( 2) An order under subsection (1) does not apply to disclosures authorized by the regulations or by the Director in writing.

43( 3) An investigator conducting an investigation may make, or authorize the making of, any disclosure of information that may be required to carry out the investigation.

Non-compellability

44 The following persons are not 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:

(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

ENFORCEMENT

Offences generally

45( 1) A person who does any of the following commits an offence and is liable on conviction for each offence to a fine of not more than $5,000,000 or to imprisonment for a term of not more than five years less a day, or to both:

(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.

45( 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.

Compensation or restitution orders

46( 1) If a person is convicted of an offence under section 45, in addition to imposing a penalty under that section, the court may order the person to pay an amount to an aggrieved person as compensation or restitution for loss or damage suffered by that person as a result of the commission of the offence.

46( 2) If a person does not comply with an order made under subsection (1) within the period specified in the order, the aggrieved person may file the order in the Court of King’s Bench, and the filed order shall be entered and recorded, and when entered and recorded, may be enforced as a judgment obtained in the court by the aggrieved person against the person named in the order for a debt in the amount specified in the order.

Misleading or untrue statements

47 In carrying on an activity governed by this Act or the regulations, 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

48( 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-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.

48( 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.

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

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

48( 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.

48( 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.

48( 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.

48( 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.

48( 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

49( 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 activities governed by this Act or the regulations;

(c) an order that a person submit to a review of the person’s practices and procedures relating to activities governed by this Act or the regulations 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 contravening or comply with, and that the directors and officers of the person cause the person to cease contravening or to comply with, this Act and the regulations;

(h) if a person has failed to comply with this Act or the regulations, an order requiring the person to disgorge to the Commission any amounts obtained as a result of the failure to comply.

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

49( 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.

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

49( 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).

49( 6) The temporary order shall take effect immediately and shall expire 15 days after it is made unless extended by the Tribunal.

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

49( 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 by order

50( 1) On the application of the Commission and after conducting a hearing, the Tribunal may impose by order an administrative penalty not exceeding $1,000,000 if the Tribunal

(a) determines that the person has contravened 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.

50( 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.

50( 3) The Tribunal shall not conduct a hearing or make an order under this section if a notice of administrative penalty has been issued to the person under section 25 for the contravention or failure to comply.

50( 4) If a person other than an individual contravenes or fails to comply with this Act or the regulations, a director or officer of the person who authorized, permitted or acquiesced in the contravention or failure to comply 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 49.

50( 5) 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.

50( 6) An agreement, written undertaking or decision made, accepted or approved under subsection (5) 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

51 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

MISCELLANEOUS AND GENERAL

Appeal to Tribunal

52( 1) Subject to subsection (6), a person who is directly affected by a decision of the Director may appeal the decision to the Tribunal within 30 days after the date of the decision.

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

52( 3) The Director is a party to an appeal of a decision of the Director under this section and is entitled to be heard by the Tribunal on the appeal.

52( 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.

52( 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.

52( 6) The following decisions of the Director are not subject to appeal:

(a) a decision to confirm, vary or rescind an administrative penalty under subsection 32(3); and

(b) a decision to publish information under section 54.

Publication of court orders, judgments or other relief

53( 1) If the Court of King’s Bench grants relief, it may make a further order requiring a provider to advertise to the public the particulars of any order, judgment or other relief granted by the Court of King’s Bench.

53( 2) In making an order under subsection (1), the Court of King’s Bench may prescribe

(a) the methods of making the advertisement so that it will ensure prompt and reasonable communication to young consumers or the parents or guardians of young consumers,

(b) the contents or form, or both, of the advertisement,

(d) any other conditions the Court of King’s Bench considers appropriate.

Publication of information by Director

54( 1) The Director may publish information in relation to the following:

(a) a written undertaking made by a person to the Commission, the Tribunal or the Director;

(b) a decision or order made by the Director under this Act or the regulations;

(d) a public interest order under section 49;

(e) the imposition of an administrative penalty by notice of administrative penalty under section 25;

(f) the imposition of an administrative penalty by order of the Tribunal under section 50;

(g) a court order made under this Act;

(h) a charge or conviction for an offence under this Act; and

(i) any other matter prescribed by regulation.

54( 2) Without limiting the generality of subsection (1), the Director may publish

(a) an individual’s name,

(b) the amount of any penalty, and

54( 3) The Director may publish the information referred to in subsection (1) in whatever form or manner the Director considers appropriate.

Service of notices and other documents by the Director

55( 1) A notice or other document to be served on a person by the Director shall be served

(a) by delivering a copy of it to the person or to an officer or employee of the person,

(b) by sending a copy of it by registered mail to the person

( i) at the most recent address appearing in the Director’s records for the person or the person’s business, or

( ii) if there is no address on record with the Commission, at the address for the person or the person’s business that is publicly available, or

55( 2) A notice or other document sent to a person in accordance with paragraph (1)(b) shall be deemed to have been served on the person not later than the fifth day after the day of mailing.

Advertisements in relation to an activity governed by this Act or the regulations

56 The Director may require a provider

(a) to provide to the Director any advertisement in relation to the activity that is published by or on behalf of the provider, and

(b) to verify, by affidavit or otherwise, the authenticity, accuracy or completeness of any advertisement provided to the Director under paragraph (a).

Ambiguous provisions or statements

57 If a provision or statement in a consumer agreement or any related document provided to a young consumer by a provider is ambiguous, the provision or statement shall be construed in favour of the young consumer.

Cancellation of pre-authorized payments

58 If a consumer agreement is cancelled in accordance with this Act and the regulations, the provider shall cancel any future payments or charges that have been authorized by the young consumer or the parent or guardian of the young consumer.

Prohibitions with respect to agreements

59( 1) A provision in a consumer agreement stating that the agreement is wholly or partly governed by a law other than an Act of the Legislature or of Canada is prohibited.

59( 2) A provision in a consumer agreement that requires a young consumer or the parent or guardian of a young consumer to submit a dispute to a court other than a court in the Province is prohibited.

59( 3) A provision that contravenes subsection (1) or (2) is void.

Immunity

60 No action or other proceeding lies or shall be instituted against a person as a result of

(a) a complaint or other communication by the person to the Minister or Director, a compliance officer, administrative penalty officer, investigator or any other person acting under this Act in respect of the conduct of a provider,

(b) assistance provided by the person in a compliance review under Part 4 or an investigation under Part 6, or

Conflict with the Right to Information and Protection of Privacy Act

61 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.

Determinations of application of Act

62 In determining whether this Act applies to a person, representation, consumer agreement or consumer interaction, a court, the Tribunal or the Director shall consider the real substance of the person, representation, consumer agreement or consumer interaction and in so doing may disregard the outward form.

No derogation from power or jurisdiction of court

63 Nothing in this Act limits, restricts or derogates from the powers or jurisdiction of a court.

Administration

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

Regulations and rules

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

(a) prescribing persons or classes of persons for the purposes of paragraph 3(2)(b);

(b) prescribing terms and conditions for the purposes of subsection 3(3);

(d) prescribing fees that shall accompany the application of an interested person for the purposes of subsection 4(3);

(e) respecting waivers or releases in relation to a person’s rights, benefits or protections under this Act or the regulations, including expressly permitting waivers or releases for the purposes of subsection 5(1);

(f) prescribing the hours during which a provider cannot send notifications, prompts or communications to a young consumer for the purposes of paragraph 7(n);

(g) prescribing unfair practices for the purposes of paragraph 7(p);

(h) respecting the cancellation of a consumer agreement for the purposes of section 12;

(i) prescribing requirements with respect to notice for the purposes of subsection 13(2);

(j) prescribing a period of time for the purposes of subsection 13(6);

(k) prescribing books, records and documents that are required to be kept for the purposes of paragraph 18(a);

(l) prescribing the powers and duties of a compliance officer;

(m) prescribing circumstances in which a provider shall pay the Commission a fee for the purposes of subsection 20(8);

(n) prescribing fees in which a provider shall pay the Commission for the purposes of subsection 20(8);

(o) prescribing expenses for which a provider shall reimburse the Commission for the purposes of subsection 20(8);

(p) prescribing the powers and duties of an administrative penalty officer;

(q) prescribing provisions of this Act or the regulations for which a notice of administrative penalty may be issued;

(r) prescribing other matters to be considered by an administrative penalty officer for the purposes of paragraph 27(h);

(s) prescribing other information to be included in a notice of administrative penalty for the purposes of paragraph 28(1)(g);

(t) respecting procedures to be followed for a review of an administrative penalty, including procedures for giving a person an opportunity to be heard;

(u) prescribing the powers and duties of an investigator;

(v) authorizing disclosures for the purposes of subsection 43(2);

(w) prescribing other matters for which information in relation to those matters may be published for the purposes of paragraph 54(1)(i);

(x) respecting notice and other documents to be served by the Director for the purposes of section 55, including other manners of service for the purposes of paragraph 55(1)(c);

(y) prescribing requirements with respect to the cancellation of pre-authorized payments;

(z) prescribing provisions of the regulations the violation of which or the failure to comply with constitutes an offence;

(aa) prescribing categories of offences for offences under this Act or the regulations for the purposes of Part 2 of the Provincial Offences Procedure Act;

(bb) exempting any provider, consumer agreement, consumer interaction, digital good, digital service or digital platform, any combination of any of them or any class of any of them from the application of the Act or the regulations or any provision of the Act or the regulations and prescribing conditions or restrictions that apply in respect of an exemption;

(cc) respecting fees payable under this Act or the regulations;

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

(ee) generally for the better administration of this Act.

65( 2) The Lieutenant-Governor in Council may make regulations

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

(b) providing for the form and content of a notice of a rule to be published in The Royal Gazette under paragraph 66(1)(b);

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

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

65( 4) 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 implement the rule effectively.

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

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

65( 7) 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.

65( 8) 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.

65( 9) 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.

65( 10) The Regulations Act does not apply to the rules made under this Act.

65( 11) 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

66( 1) As soon as the circumstances permit after a rule is made under section 65, 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.

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

66( 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

67 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 66(1)(a).

Consolidated rules

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

68( 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.

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

68( 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.

68( 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.

Consequential Amendments and Commencement

Financial and Consumer Services Commission Act

2( 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 after paragraph (s.1) the following:

(s.2) the Young Consumers in Digital Markets Act,

(b) in the definition “regulator”

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

( ii) in paragraph (j) by striking out the period at the end of the paragraph and substituting “, and”;

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

(k) the Director of Digital Markets for Young Consumers appointed under paragraph 18(2)(m).

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

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

(b) in paragraph (l) by striking out the period at the end of the paragraph and substituting “; and”;

(m) the Director of Digital Markets for Young Consumers.

2( 3) Subsection 21(6) of the Act is amended

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

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

(l) paragraph 49(1)(h) of the Young Consumers in Digital Markets Act.

Commencement

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

PART 2

AMENDMENTS TO THE EARLY CHILDHOOD SERVICES ACT

Early Childhood Services Act

4 The Early Childhood Services Act, chapter E-0.5 of the Acts of New Brunswick, 2010, is amended by adding after section 21 the following:

Personal mobile devices

21.1( 1) For the purposes of this section, “personal mobile device” means a personal electronic device, including, but not limited to, a cellphone, a smart watch, a portable gaming console, a tablet, a laptop and wireless earphones.

21.1( 2) An operator of a licensed facility shall not permit the use of personal mobile devices that are not owned by the licensed facility by children receiving services at the licensed facility during operating hours on the premises of a licensed facility, including in the outdoor play area, during outings and while the children are being transported.

21.1( 3) Subsection (2) does not apply if the use of the personal mobile device is required for one or more of the following reasons:

(a) a medical condition or health need of the child;

(b) an accommodation for the child; or

21.1( 4) The exemption referred to in subsection (3) shall be applied in accordance with provincial policies and guidelines established by the Minister under subsection 2.01(1).

Regulation under the Early Childhood Services Act

5( 1) Subsection 31(5) of the English version of New Brunswick Regulation 2018-11 under the Early Childhood Services Act is amended in the English version by striking out “childcare” and substituting “child care”.

5( 2) The Regulation is amended by adding after section 35 the following:

Screen time

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

“screen” means any screen, including the screen of a television, monitor, projector, interactive whiteboard, computer, laptop, tablet, cellphone, smart watch and video game console. (écran)

“screen time” means the time during which a child watches, uses or interacts with a screen or is present in a place where a screen displaying or projecting any content is located. (temps d’écran)

35.1( 2) An operator of a licensed facility shall not permit

(a) any screen time for an infant receiving services at the licensed facility, and

(b) more than 30 minutes of screen time per day for a preschool child or a school-age child receiving services at the licensed facility.

35.1( 3) Despite paragraph (2)(b), an operator of a licensed facility may permit more than 30 minutes of screen time per day on occasion as part of a planned special activity to a school-age child receiving full-time services at the licensed facility.

35.1( 4) Despite paragraph (2)(b), if services are provided for fewer than three consecutive hours per day to a particular group of children at a licensed facility, the operator of the licensed facility shall not permit any screen time for a child receiving those services at the licensed facility.

35.1( 5) The screen time permitted under subsections (2) and (3) shall be educational, developmentally appropriate and educator-guided and shall not be permitted during meal periods.

35.1( 6) Subsections (2) to (5) do not apply if the screen time is required for one or more of the following reasons:

(a) a medical condition or health need of the child;

(b) an accommodation for the child; or

35.1( 7) The exemption referred to in subsection (6) shall be applied in accordance with provincial policies and guidelines established by the Minister under subsection 2.01(1) of the Act.

PART 3

AMENDMENTS TO THE EDUCATION ACT

Education Act

6( 1) The Education Act, chapter E-1.12 of the Acts of New Brunswick, 1997, is amended by adding after section 14 the following:

Personal mobile devices

14.1( 1) A pupil in kindergarten to grade eight shall not use a cellphone or any other personal mobile device specified by policy during school hours on school property.

6( 2) The Act is amended by adding after subsection 14.1(1) the following:

14.1( 2) A pupil in grade nine to grade twelve shall not use a cellphone or any other personal mobile device specified by policy during school hours on school property.

6( 3) The Act is amended by adding after section 14.1 the following:

Exemption

14.2( 1) Section 14.1 does not apply if the use of the cellphone or other personal mobile device is required for one or more of the following reasons:

(a) a medical condition or health need of the pupil;

(b) an accommodation for the pupil; or

14.2( 2) The exemption referred to in subsection (1) shall be applied in accordance with provincial policies and guidelines established by the Minister under paragraph 6(b.2).

Non-compliance

14.3 In the case of a pupil who fails to comply with section 14.1, school personnel may temporarily confiscate the cellphone or other personal mobile device.

6( 4) Subsection 27(1) of the Act is amended by adding after paragraph (a) the following:

(a.1) using digital content in the classroom only if it is directly connected to learning outcomes,

Commencement

7 Subsection 6(2) of this Act comes into force on February 1, 2027.

SCHEDULE A

Number of provision

5(1)
8(1)
9(1)
12(6)
18
19(1)
19(2)
22
23(1)
35
38(5)
47
49(3)
56
58