BILL 2 – 2004
BUSINESS PRACTICES AND CONSUMER PROTECTION ACT

 
Part 8 -- Compensation Funds and Consumer Advancement Fund

 
Division 1 -- Compensation Funds

Definition

129 In this Part, "contributor" means, in relation to a compensation fund, a person designated by regulation to make payments to the fund.

Establishment and continuation of compensation funds

130 (1) The Lieutenant Governor in Council, by regulation, may

(a) establish one or more compensation funds, and

(b) designate contributors to each fund.

(2) The Travel Assurance Fund is continued as a compensation fund under this Act.

(3) A compensation fund consists of the following:

(a) payments made to the fund under section 131 [prescribed payments to compensation fund], 135 [claimant must repay compensation fund for money received from another source], 136 [contributor must repay compensation fund for claims caused by contributor] or 163 (3) [forfeiture of property];

(b) money recovered by the director in respect of a claim against the fund;

(c) any interest or other income of the fund;

(d) borrowings made on behalf of the fund under subsection (5);

(e) any additional source of revenue prescribed.

(4) The director is the trustee of a compensation fund.

(5) Subject to the regulations, the director may borrow money on behalf of a compensation fund to enable the payment of claims.

(6) Subject to section 138 [if administrative authority is director], a compensation fund is a trust fund under the Financial Administration Act.

Payments to compensation fund

131 Subject to section 179 [power of administrative authority to set fees], a contributor must make payments to a compensation fund in the prescribed amount and manner and at the prescribed times.

Claims against compensation fund

132 (1) A person may apply to the director for compensation from a compensation fund in the prescribed circumstances and manner.

(2) The director must not compensate a person who has applied for compensation in respect of a default judgment or judgment by consent unless the director is satisfied that the claim would otherwise be payable under this Part.

Payments from compensation fund

133 (1) The director must pay the following from a compensation fund:

(a) subject to this Part and the regulations, claims that the director determines meet the circumstances prescribed under section 132 (1);

(b) prescribed payments in prescribed emergency circumstances to a person who would be eligible to make a claim under section 132 (1);

(c) the principal amount of any borrowings and associated interest and costs;

(d) the costs of administering the fund, including any costs incurred in investigating and processing claims against the fund.

(2) The director may do one or more of the following:

(a) pay a claimant in one or more instalments;

(b) prorate payments between claimants if the compensation fund is insufficient to pay all claims;

(c) pay to the claimant all or part of the money recovered by the director in respect of the claim after deducting

(i) the amount paid out of the compensation fund in respect of the claim,

(ii) interest on the amount referred to in subparagraph (i) at the prescribed annual rate from the date of payment, and

(iii) any costs of recovery, including actual legal costs.

Assignment of rights

134 (1) The director must not make a payment from a compensation fund under section 133 (1) (a) unless the claimant has assigned to the director all the claimant's rights in respect of the loss that gave rise to the claim.

(2) If the director makes a payment under section 133 (1) (b), all the claimant's rights are deemed to have been assigned to the director with respect to the loss that gave rise to the payment.

Claimant must repay compensation fund for
money received from another source

135 (1) If money is paid from a compensation fund to a claimant, the claimant must pay to the fund any money, or the value of any other thing, received by the claimant from another source on account of the loss that gave rise to the claim, up to the amount paid from the fund to the claimant.

(2) If the claimant fails to comply with subsection (1), the director has a cause of action against the claimant for the amount unpaid.

Contributor must repay compensation fund
for claims caused by contributor

136 If a claim is paid out of a compensation fund, the contributor who caused the claim must pay to the fund the amount paid or incurred in respect of that claim under section 133 (1) [payments from compensation fund].

Powers and duties of director

137 (1) Subject to the regulations, the director has exclusive jurisdiction to hear and decide claims against a compensation fund.

(2) Subject to subsection (3), a decision, order or ruling of the director made under this Act in respect of a matter that relates to a compensation fund and that is within the director's jurisdiction is final and conclusive and is not open to question or review in a court except on a question of law or excess of jurisdiction.

(3) A decision, order or ruling referred to in subsection (2) may be reconsidered in accordance with Division 1 of Part 12 [reconsiderations].

If administrative authority is director

138 (1) If, in respect of a compensation fund, the administrative authority is designated as the director,

(a) the fund, including all investments of and borrowings on behalf of the fund, is transferred to the administrative authority,

(b) on transfer, the fund ceases to be a trust fund under the Financial Administration Act,

(c) the administrative authority must hold the fund in trust,

(d) money paid into the fund, or received by the authority for the fund, is not subject to any process of garnishment, attachment, execution or seizure under any legal process by any creditor of the administrative authority, and

(e) the authority may invest the fund only as permitted under the provisions of the Trustee Act respecting the investment of trust property by a trustee.

(2) A reference to the government or to the director designated by the minister under section 175 (1) (a) [director] in any commercial paper, contract, lease, licence, permit or other instrument or document that relates to an investment of or borrowing on behalf of the fund that is transferred to the administrative authority is deemed to be a reference to the authority.

(3) If, in respect of a compensation fund, the designation of the administrative authority as director in respect of that fund is revoked,

(a) a director designated by the minister under section 175 (1) (a) [director] is trustee of the fund,

(b) the fund, including all investments of and borrowings on behalf of the fund, is transferred to the director referred to in paragraph (a),

(c) on transfer, the fund is a trust fund under the Financial Administration Act, and

(d) a reference to the authority in any commercial paper, contract, lease, licence, permit or other instrument or document that relates to an investment of or borrowing on behalf of the fund that is transferred to the government is deemed to be a reference to the government.

 
Division 2 -- Consumer Advancement Fund

Establishment of Consumer Advancement Fund

139 (1) The Consumer Advancement Fund is established for the purposes referred to in section 140.

(2) The Consumer Advancement Fund consists of the following:

(a) payments made to the fund under sections 163 (3) [forfeiture of property], 169 [revenue from administrative penalties] and 191 [additional penalty];

(b) any interest or other income of the fund;

(c) any additional source of revenue prescribed.

(3) The director is the trustee of the Consumer Advancement Fund.

(4) Subject to section 141 [if administrative authority is director], the Consumer Advancement Fund is a trust fund under the Financial Administration Act.

Payments from Consumer Advancement Fund

140 The director may expend the Consumer Advancement Fund only

(a) for the purpose of educating consumers and suppliers about any matters relating to this Act,

(b) for the purpose of increasing compliance with this Act,

(c) to pay the costs associated with imposing an administrative penalty,

(d) to pay the costs of administering the Consumer Advancement Fund, and

(e) for other prescribed purposes.

If administrative authority is director

141 Section 138 [if administrative authority is director] applies to the Consumer Advancement Fund.