BILL 2 – 2004
BUSINESS PRACTICES AND CONSUMER PROTECTION ACT

 
Part 13 -- Offences and Penalties

Offences

189 (1) Section 5 of the Offence Act [general offence] does not apply to this Act or the regulations.

(2) A person who contravenes subsection (5) or any of the following sections commits an offence:

(a) section 5 (1) [deceptive act or practice];

(b) section 6 (3) [record of advertisement];

(c) section 9 (1) [unconscionable act or practice];

(d) section 30 (1) [prohibition on solicitation];

(e) section 31 (1) and (2) [requirement for schedule of rates];

(f) section 32 [requirement to give accurate information];

(g) section 33 [prohibited charges respecting containers]

(h) section 35 [preneed cemetery or funeral services contract -- initial disclosure statement];

(i) section 40 (3), (4), (5) or (10) [money received under preneed cemetery or funeral services contract to be held in trust];

(j) section 42 [restrictions on representations respecting right of interment];

(k) section 46 (1) [disclosure of information respecting distance sales contract];

(l) section 56 [cancellation of preauthorized payments];

(m) section 59 (3) [disclosure in advertisements];

(n) section 60 (2) or (3) [advertising requirements applicable to fixed credit];

(o) section 61 (2) [advertising requirements applicable to open credit];

(p) section 63 (3) [advertising requirements applicable to leases];

(q) section 64 (1) [advertising a representative transaction].

(3) A person who contravenes any of the following sections commits an offence:

(a) section 66 (2) or (3) [disclosure statements must be given];

(b) section 67 (1) [form of disclosure statements and statements of account];

(c) section 71 (2) [borrowers may choose insurer];

(d) section 72 (2) or (3) [borrowers entitled to mortgage discharge];

(e) section 74 (3) [refund of non-interest finance charges if prepayment of credit];

(f) section 75 [default charges];

(g) section 77 (5) [acceleration clauses];

(h) section 79 [loan broker securing credit from non-business credit grantors];

(i) section 80 (1) [business credit grantors];

(j) section 83 [credit sales require scheduled-payments credit agreement];

(k) section 84 [initial disclosure statements for fixed credit];

(l) section 85 (1) or (2) [disclosure regarding changes in interest rate];

(m) section 86 (1) or (2) [disclosure regarding increases in outstanding principal];

(n) section 87 (1) or (2) [disclosure regarding amendments];

(o) section 88 (1) or (2) [disclosure regarding renewals];

(p) section 91 (1) [initial disclosure statements for open credit];

(q) section 92 (1) or (3) [statements of account];

(r) section 96 (1) [credit cards may be issued only on application];

(s) section 97 (1) or (3) [applications for credit cards];

(t) section 98 (1) or (2) [additional disclosure for credit cards];

(u) section 101 (1) [disclosure required in relation to leases];

(v) section 104 [refund of overpayment].

(4) A person who contravenes any of the following sections commits an offence:

(a) section 107 (1) [obtaining credit report without consent];

(b) section 108 (1) [providing information except in a report] or (2) [obtaining report in unauthorized circumstances];

(c) section 109 (1) or (3) [contents of credit report];

(d) section 110 (1), (4) or (5) [notice of denial of benefit or increase of cost of benefit];

(e) section 111 (2) [explanation];

(f) section 112 (1) [false or misleading information];

(g) section 114 (1) [harassment];

(h) section 115 (1), (2) or (3) [disclosure to debtor];

(i) section 116 (1), (2), (3) or (4) [communication with debtor];

(j) section 117 (1) or (2) [communication with persons other than debtor];

(k) section 118 (2) [time of communication];

(l) section 119 [cost of communication];

(m) section 120 [collection from person not liable for debt or in excess of amount of debt];

(n) section 121 (1), (2) or (4) [legal proceedings];

(o) section 122 [removal, seizure, repossession and distress];

(p) section 123 [false or misleading information and misrepresentations];

(q) section 126 (2) or (3) [accounting for and payment of money collected];

(r) section 127 (1) (a) or (3) [debt pooling];

(s) section 128 (1) or (4) (b) [collection agent and bailiff fees and disbursements];

(t) section 131 [payments to compensation fund];

(u) section 143 [licence required].

(5) A person must not do any of the following:

(a) supply false or misleading information to a person acting under this Act;

(b) refuse or fail to provide information as required under this Act;

(c) fail to comply with

(i) an undertaking,

(ii) a compliance order,

(iii) a direct sales prohibition order,

(iv) a property freezing order, or

(v) an order of a court under this Act;

(d) contravene a provision of a trust agreement under section 40 [preneed cemetery or funeral services contract];

(e) obstruct, hinder or interfere with an inspection under this Act;

(f) purport to have a licence when the person does not.

(6) A person does not commit an offence under subsection (5) (a) if, at the time the information was supplied, the person did not know that it was false or misleading and, with the exercise of reasonable diligence, could not have known that it was false or misleading.

(7) Each day that an offence continues under subsection (5) (e) constitutes a separate offence.

(8) If a corporation commits an offence under this Act, an employee, officer, director or agent of the corporation who authorizes, permits or acquiesces in the commission of the offence also commits an offence, whether or not the corporation is prosecuted for the offence.

(9) In a prosecution for an offence under this Act, it is sufficient proof of the offence to establish that it was committed by an employee, officer, director or agent of the defendant, whether or not the employee, officer, director or agent is identified or has been prosecuted for the offence.

(10) Subsection (9) does not apply if the defendant establishes that the defendant exercised due diligence to prevent the commission of the offence.

Penalty

190 (1) An individual who commits an offence under this Act is liable to a fine of not more than $10 000 or to imprisonment for not more than 12 months or to both.

(2) A corporation who commits an offence under this Act is liable to a fine of not more than $100 000.

(3) Despite subsections (1) and (2), the court may increase a fine imposed under this section by an amount of up to 3 times the court's estimation of the amount of monetary benefit acquired or accrued as a result of the commission of the offence.

Additional penalty -- Consumer Advancement Fund

191 (1) In addition to a penalty imposed under section 190 [penalty], a court that convicts a defendant of an offence under this Act may order, at the time the penalty is imposed, the defendant to pay to the Consumer Advancement Fund an amount of not more than $1 000.

(2) The director may recover the amount owing to the Consumer Advancement Fund under subsection (1) as a debt due.

Compensation to consumer

192 (1) In addition to a penalty imposed under section 190 [penalty], a court that convicts a defendant of an offence under this Act may order, at the time the penalty is imposed, the defendant to pay to an aggrieved consumer or guarantor, as compensation for pecuniary loss suffered by the aggrieved consumer or guarantor as a result of the commission of the offence, an amount not greater than the monetary jurisdiction specified in the Small Claims Act.

(2) An aggrieved consumer or guarantor, or the Crown prosecutor at the request and on behalf of the aggrieved consumer or guarantor, may apply for an order under subsection (1), unless the aggrieved consumer or guarantor has commenced an action against the defendant under section 171 [damages recoverable] in respect of the same transaction.

(3) If the defendant does not comply with an order made under subsection (1)

(a) within the time ordered by the court, or

(b) within 30 days of the order being made, if no time is specified in the order,

the aggrieved consumer or guarantor may enter judgment in the Provincial Court by filing the order with the registrar of the Provincial Court hearing matters under the Small Claims Act in or near the place where the conviction was entered.

(4) A judgment entered in the Provincial Court under subsection (3) is enforceable against the defendant in the same manner as if it were a judgment rendered in that court in civil proceedings.

Limitation period

193 The time limit for laying an information for an offence under this Act is 2 years after the time when the subject matter of the proceedings arose.