Third Session, 46th General Assembly
59 Elizabeth II, 2010
AN ACT TO AMEND THE PREPAID FUNERAL SERVICES ACT
Received and Read the First Time...................................................................................................
HONOURABLE KEVIN O'BRIEN
Minister of Government Services
Ordered to be printed by the Honourable House of Assembly
This Bill would amend the Prepaid Funeral Services Act to
ˇ provide authority for the minister to impose restrictions, limitations or conditions on a licence and prescribe the duration of a licence issued under the Act;
ˇ expand the scope of search and seizure provisions to include the authority to seize documents and other items;
ˇ add a provision to the Act to allow the minister to appoint persons to conduct examinations and investigations under the Act;
ˇ provide authority for a judge to issue a production order requiring a person, other than a person who is the subject of an investigation, to produce documents in his or her possession concerning a violation of the Act;
ˇ provide authority for a person appointed by the minister to summon and enforce the attendance of a person and to compel that person to testify, and to summon and compel a person or company to produce documents and other things in the context of an examination or investigation under the Act;
ˇ provide authority for the minister to issue an order of protection requiring a person holding money belonging to consumers not to disburse or use the money until the order is lifted;
ˇ provide authority for the minister to take measures to safeguard funds in the possession or control of a seller of prepaid funeral services;
ˇ provide authority for a judge to order restitution where the Act has been violated and a person has suffered damages, including restitution to the assurance fund where a person has been compensated under that fund;
ˇ make it an offence to obstruct or interfere with a lawful investigation or examination;
ˇ increase penalties that the court may impose; and
ˇ set a 2 year limitation period for prosecutions under the Act.
AN ACT TO AMEND THE PREPAID FUNERAL SERVICES ACT
1. S.3 Amdt.
3. S.11.1 Added
4. S.12 R&S
Ss.13.1 to 13.4 Added
Be it enacted by the Lieutenant-Governor and House of Assembly in Legislative Session convened, as follows:
SNL2000 cP-18.1 as amended
1. Section 3 of the Prepaid Funeral Services Act is amended by adding immediately after subsection (3) the following:
(3.1) The minister may attach to a licence those restrictions, limitations and conditions the minister considers appropriate.
2. The Act is amended by adding immediately after section 3 the following:
Duration of licence
3.1 (1) A licence remains in effect, subject to the filing of annual reports and payment of an annual fee as prescribed by the minister, and subject to the requirements of the Act and regulations, until it is suspended or cancelled under this Act.
(2) Notwithstanding subsection (1), the minister may issue a licence for a period of time the minister considers appropriate.
3. The Act is amended by adding immediately after section 11 the following:
Appointment of examiners and investigators
11.1 The minister may appoint persons as examiners and investigators to conduct examinations and investigations under this Act.
4. Section 12 of the Act is repealed and the following substituted:
12. (1) Where it is reasonably necessary to ensure compliance with this Act, a person appointed by the minister under section 11.1, may, for the purpose of conducting an examination, at reasonable times enter the premises of a seller and
(a) require the production of books, records or other documents applicable to prepaid funeral contracts sold by that seller or its agent or salesperson and may examine those books, records or documents or remove them for the purpose of making copies of them;
(b) interview employees and agents of a seller to determine if the seller is complying with this Act; and
(c) inquire into all matters relating to prepaid funeral contracts, funeral goods and funeral services related to those contracts.
(2) A seller whose premises are entered under subsection (1) and a person found there shall give the person appointed to conduct the examination reasonable help to enable him or her to carry out his or her duties and functions under this Act and shall provide the information that he or she may reasonably require.
(3) Where a person conducting an examination under subsection (1) removes books, records or other documents under paragraph (1)(a), he or she shall give to the person from whom those items were taken a receipt for those items and shall immediately make copies of those items and return the originals to the person who was given the receipt.
(4) The minister may require the annual examination of a seller under this section or more frequent examinations where he or she considers it necessary.
5. Section 13 of the Act is repealed and the following substituted:
Search and seizure with warrant
13. (1) Where a person appointed by the minister under section 11.1 believes on reasonable grounds that a person is contravening or has contravened this Act, the person may, with a warrant issued under subsection (2), enter those premises and seize anything that may provide evidence of the contravention.
(2) A judge of the Provincial Court or the Trial Division who is satisfied on oath or affirmation that there are reasonable grounds for believing that a contravention of this Act has occurred, or is occurring, may issue a warrant authorizing the person named in the warrant to enter the private or public premises, including a dwelling house, and to
(b) examine the contents of the premises and make those inquires that the person considers necessary; and
(c) copy, extract, photograph, video, seize and take away evidence, books and records
for the purpose of investigating the suspected contravention.
(3) A seller and the owner or operator of private or public premises referred to in this section and a person found there shall not obstruct the person named in the warrant in its execution.
6. The Act is amended by adding immediately after section 13 the following:
Powers of an examiner or investigator
13.1 (1) A person appointed by the minister under section 11.1 to conduct an examination or an investigation has the same power to summon and enforce the attendance of a person and to compel him or her to testify on oath or otherwise, and to summon and compel a person or company to produce documents and other things, that is vested in a judge of the Trial Division, and the refusal of the person to attend or to answer questions or of a person or company to produce documents or other things that are in his, her or its custody or possession makes the person or company liable to be committed for contempt by a judge of the Trial Division as if in breach of an order of that court.
(2) A person or company giving evidence under subsection (1) may be represented by counsel and may claim a privilege to which the person or company is entitled.
13.2 (1) A judge of the Provincial Court or a judge of the Trial Division may order a person, other than a person who is the subject of an investigation,
(a) to produce a document or a copy of a document, certified by affidavit to be a true copy, or to produce data; or
(b) to prepare a document based on a document or data already in existence and to produce it.
(2) An order referred to in subsection (1) shall require the document or data to be produced within the time, at the place and in the form specified and to be given to a person appointed by the minister under section 11.1.
(3) A judge may make an order referred to in subsection (1) where he or she is satisfied on the basis of an application made in writing on oath or affirmation and without notice that there are reasonable grounds to believe that
(a) a person has contravened or is contravening this Act or the regulations or is suspected to have contravened this Act or the regulations;
(b) the document or data will provide evidence respecting a contravention or suspected contravention of this Act or the regulations; and
(c) the person who is subject to the order has possession or control of the document or data.
(4) An order referred to in subsection (1) may contain terms and conditions that the judge considers advisable in the circumstances, including terms and conditions to protect a privileged communication between a lawyer and his or her client.
(5) The order referred to in subsection (1) may be revoked, renewed or varied.
(6) A copy of a document produced under this section, on proof by affidavit that it is a true copy, is admissible in evidence in proceedings under this Act and has the same probative force as the original document would have if it had been proved in the ordinary way.
(7) Copies of documents produced under this section are not required to be returned to the person who provided them.
13.3 (1) Where the minister considers it necessary for the administration of this Act, the minister may direct a person, having on deposit or under his or her control or for safekeeping funds of a seller, to retain those funds and to hold them until the minister in writing revokes the direction or consents to release a particular fund from the direction, or until a judge of the Trial Division orders otherwise.
(2) A direction under subsection (1) that names a bank or other financial institution shall apply only to a branch of the bank or other financial institution identified in the direction.
(3) As soon as practicable, and not later than 7 days after a direction is issued under subsection (1), the minister shall apply to a judge of the Trial Division to continue the direction or for another order that the judge considers appropriate.
(4) A direction under subsection (1) may be made without notice but, in that event, copies of the direction shall be sent immediately by means that the minister may determine to all persons named in the direction.
Protection of trust funds
13.4 (1) Where the minister believes that the business of a seller is neglected to the prejudice of a person or that the interests of the clients of the seller are not being protected or that the seller has converted trust funds, the minister may, by order appoint a person as trustee to take possession of property or an undertaking in the possession of or under the control of the seller for the purpose of preserving, carrying on or winding up the business of the seller.
(2) A person appointed under subsection (1) shall be the trustee in respect of a trust property of the seller, and the person shall in respect of that trust property take the place of a personal representative, committee or other representative of the seller.
(3) A seller may appeal to the Trial Division in accordance with the Rules of the Supreme Court, 1986, from an order made by the minister under this section within 30 days after the delivery of a copy of the order to the seller.
(4) The minister may, in an order made under subsection (1), make provision for the remuneration, disbursements and indemnification of the trustee out of that money or otherwise as the minister may specify.
7. Section 16 of the Act is repealed and the following is substituted:
16. (1) A person shall not interfere with or obstruct a person in the course of a lawful investigation or examination under this Act or the regulations.
(2) A person who contravenes a provision of this Act or the regulations is liable on summary conviction to a fine of not less than $500 and not more than
(a) $100,000; or
(b) an amount equal to 3 times the amount obtained by the person as a result of the offence, whichever is greater,
or to a term of imprisonment of not more than 2 years, or to both a fine and imprisonment.
(3) Where a person is convicted of an offence under this Act or the regulations, the court making the conviction may, in addition to another penalty, order the person convicted to make compensation or restitution to a person or to the assurance fund where the person who has suffered the damages has been paid from the fund under the authority of section 5.
8. The Act is amended by adding immediately after section 16 the following:
16.1 A prosecution under this Act and the regulations shall not be started more than 2 years from date the offence was discovered by the minister.
ŠEarl G. Tucker, Queen's Printer