SNL2000 CHAPTER P-18.1 - PREPAID FUNERAL SERVICES ACT

Be it enacted by the Lieutenant-Governor and House of Assembly in Legislative Session convened, as follows:

Short title

1. This Act may be cited as the Prepaid Funeral Services Act .

2000 cP-18.1 s1

Definitions

2. In this Act

(a) "association" means the Newfoundland and Labrador Funeral Services Association Inc. incorporated under the Corporations Act ;

(b) "assurance fund" means the Consumer Protection Fund for Prepaid Funerals established under section 5;

(c) "beneficiary" means a person who is named in a prepaid funeral contract on whose death funeral services are to be performed or funeral goods are to be provided or delivered under that contract;

(d) "buyer" means a person, whether or not he or she is a beneficiary, who purchases funeral services or funeral goods under a prepaid funeral contract;

(e) "department" means the department presided over by the minister;

(f) "financial institution" means a financial institution as defined in the Bank Act (Canada), a credit union operating under the Credit Union Act and a corporation as defined in the Trust and Loan Corporations Act ;

(g) "funds" means all money or other consideration received as payment for a prepaid funeral contract and all interest accrued or earned on that money or other consideration;

(h) "funeral goods" means those items of merchandise sold or offered for sale directly to the public that will be used in connection with a funeral or an alternative or final disposition of human remains;

(i) "funeral services" means the

(i) care and preparation of human remains, and

(ii) co-ordination of rites and ceremonies in connection with the disposition of human remains,

and other services to be performed, made available or provided by a seller and carried out at the request of a person responsible for funeral and disposition arrangements of the human remains;

(j) "licence" means a licence issued under section 3;

(k) "minister" means the minister appointed under the Executive Council Act to administer this Act;

(l) "prepaid funeral contract" means a contract, agreement or a series or combination of contracts or agreements other than a contract of insurance issued by an insurer licensed under the Insurance Companies Act

(i) under which a seller promises, for a specified monetary consideration paid in advance of death in a lump sum or by instalments, to provide or make available funeral services or funeral goods for use at a time determinable by the death of the beneficiary,

(ii) that is a prepaid, prearranged deposit contract, where the funds are left with the seller and are to be used towards the eventual costs of funeral goods and funeral services on behalf of the beneficiary,

(iii) that is a prepaid, prearranged trust contract where the buyer and the seller have a fixed agreement for the provision, on behalf of the beneficiary, of funeral goods and funeral services specified in the contract, or

(iv) under which, for monetary consideration, a seller provides counselling or advice to a person with respect to funeral services or funeral goods; and

(l.1) "registrar" means the Registrar of Prepaid Funerals; and

(m) "seller" means a person who, as a seller or provider of or the person undertaking to provide counselling, advice, funeral services or funeral goods, enters into, proposes to enter into or solicits another person to enter into a prepaid funeral contract.

2000 cP-18.1 s2; 2007 cT-9.1 s5; 2017 c22 s1

Registrar

2.1 (1) The Lieutenant-Governor in Council shall appoint a Registrar of Prepaid Funerals to administer and enforce this Act and the regulations.

(2) The Lieutenant-Governor in Council may appoint a deputy registrar who shall, when the registrar is absent or unable to act, when the registrar considers it necessary to delegate his or her authority, or when the office of the registrar is vacant, perform the functions of and have all the powers and authority of the registrar.

2017 c22 s2

Licence

3. (1) A person may, in writing, apply to the registrar for and the registrar may issue to that person a licence to be a seller.

(2) A person applying under subsection (1) shall provide to the registrar

(a) copies of proposed prepaid funeral contracts;

(b) the required fee; and

(3) The registrar may refuse to issue a licence to a person and may cancel the licence of a licensee where the registrar is of the opinion that a

(a) person has made a false or misleading statement in the application for a licence or in documents in support of that application; or

(b) person applying for a licence or a licensee cannot meet or no longer meets the requirements of this Act with respect to the assurance fund, a trust fund or other requirements under this Act.

(3.1) The registrar may attach to a licence those restrictions, limitations and conditions the registrar considers appropriate.

(4) Where the registrar is satisfied that a seller does not comply with this Act or is not able to carry out the obligations imposed upon the seller under this Act, he or she may order that seller to take the remedial action that is necessary to bring the licensee into compliance with this Act and for that purpose may direct that an auditor perform an audit and inspect the books, documents and other records of the seller that relate to prepaid funeral contracts.

(5) The seller who is the subject of the audit and inspection shall pay the remuneration and expenses of an auditor directed under subsection (4).

(6) A seller and an operator or employee of the seller's place of business shall give the auditor directed under subsection (4) reasonable help to enable the auditor to carry out his or her duties and shall provide information that the auditor may reasonably require.

2000 cP-18.1 s3; 2010 c24 s1; 2017 c22 s3

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 registrar may issue a licence for a period of time the registrar considers appropriate.

2010 c24 s2; 2017 c22 s4

Prohibition

4. (1) A person shall not act as a seller or otherwise sell, offer to sell or arrange the sale of a prepaid funeral contract or prepaid funeral service unless that person holds a licence issued under section 3 and is acting in accordance with this Act.

(2) This section and section 3 do not apply to a person acting as an agent or salesperson of a seller who holds a licence issued under this Act.

(3) This Act does not apply to a church, place of worship or non-profit organization that operates a cemetery.

2000 cP-18.1 s4; 2000 c30 s1

Assurance fund

5. (1) The minister shall establish an assurance fund to be known as the Consumer Protection Fund for Prepaid Funeral Services for the purpose of paying in whole or in part, claims arising out of a prepaid funeral contract against a person who holds or held a licence issued under this Act.

(2) The assurance fund shall consist of money paid into it by sellers in accordance with the regulations, money borrowed under subsection (9), and interest, dividends and other returns earned upon the investment of money in the assurance fund.

(3) The minister shall direct the registrar, the association, or the board established under subsection (4) to be responsible for the financial management and administration of and disbursement of payments from the assurance fund in accordance with the regulations.

(4) The minister may establish a board of not fewer than 5 and not more than 10 persons to administer the assurance fund.

(5) The assurance fund shall be held in trust for those persons, who, in accordance with the regulations, are entitled to receive payments out of the assurance fund.

(6) Money in the assurance fund shall be invested in investments authorized by the Trustee Act .

(7) The costs and expenses in administering the assurance fund may, in accordance with the regulations, be paid out of the assurance fund to

(a) the minister, where the registrar is administering the fund;

(b) the association, where it is administering the fund; or

(8) The assurance fund shall, in accordance with the regulations, be audited annually and a report on that audit shall be submitted to the minister not more than 90 days after the end of the preceding fiscal year established for the assurance fund.

(9) The registrar, association or board, whichever is directed by the minister to administer the fund, may borrow money for the purpose of deposit to the fund.

(9.1) Notwithstanding subsection (9), the registrar shall not borrow money for the purpose of deposit to the fund without the prior written approval of the minister.

(10) A person who would have been entitled to a payment out of the assurance fund if this Act had come into force on November 1, 2000 shall be considered to be entitled to a payment out of the fund notwithstanding this Act did not come into force until December 22, 2000 .

2000 cP-18.1 s5; 2001 c3 s1; 2017 c22 s5

Seller trust fund

6. (1) A seller shall establish with a financial institution a trust fund that shall be kept separate and apart from all other money in the seller's control and that trust fund shall have deposited with it all

(a) funds paid to or collected by the seller with respect to a prepaid funeral contract; and

(b) money paid to the seller under an insurance or other agreement or contract by which the seller is required to use that money to provide funeral goods or funeral services to a person.

(2) All funds deposited in trust under subsection (1) shall be held in trust for the buyers and beneficiaries of prepaid funeral contracts and shall be invested in investments authorized by the Trustee Act .

(3) Notwithstanding subsection (2), the costs and expenses of the administration of funds deposited in trust under this section may, in accordance with the regulations be paid out of the trust fund to the trust administrator.

(4) A seller shall annually prepare and submit to the registrar a report on the prepaid funeral contracts entered into and the trust funds established under this section for the year immediately preceding that date.

2000 cP-18.1 s6; 2017 c22 s6

Seller requirements

7. (1) A seller shall provide a copy of the executed prepaid funeral contract to the buyer immediately upon execution of the contract.

(2) A seller shall maintain, in the required form, records with respect to each prepaid funeral contract and every contract of insurance under which funds and proceeds have been placed in trust under subsection 6(1).

(3) A seller shall not withdraw funds deposited in a trust account under subsection 6(1) unless the conditions required under this Act have been met and until the prepaid funeral contract has been

(a) fully performed by the seller;

(b) rescinded under section 9; or

(4) Funds deposited in a trust account under section 6 that are not withdrawn by a seller as permitted under subsection (3) shall be dealt with in the manner required by regulation.

(5) A seller shall annually carry out an audit of the trust funds established by the seller under section 6 and provide to the registrar a copy of an audited statement of the prepaid funeral contracts, and the funds,

(a) collected with respect to those contracts during the preceding fiscal year;

(b) paid out from the trust accounts established under subsection 6(1) during the preceding fiscal year;

(d) payable to trust accounts established under subsection 6(1).

2000 cP-18.1 s7; 2017 c22 s7

Prohibition

8. (1) A seller shall not call on, telephone or contact a person cared for or residing in a hospital, long term care facility or personal care home operating under the Health and Community Services Act or the Hospitals Act for the purpose of soliciting prepaid funeral contracts without having received a specific request to make that call, contact or solicitation.

(2) Notwithstanding subsection (1), a seller may, with the prior written approval of a hospital, facility or home referred to in subsection (1), and in accordance with the regulations, make a presentation with respect to prepaid funeral contracts to persons residing at those places.

(3) A seller shall not assign a prepaid funeral contract to another person unless the seller has obtained the prior consent, in writing, of the buyer of that contract or where the buyer is not available, of the beneficiary or his or her legal representative.

(4) Where a prepaid funeral contract is assigned at the request of the buyer, beneficiary or the beneficiary's legal representative, that buyer, beneficiary or representative shall pay to the seller an amount of money as compensation for that transfer, calculated in accordance with the regulations.

2000 cP-18.1 s8

Rescission

9. (1) A buyer may rescind a prepaid funeral contract where the

(a) buyer serves a written notice of the rescission upon the seller not more than 10 days after he or she has entered into that contract; or

(b) seller

(i) was not licensed under this Act at the time that the buyer entered into the contract,

(ii) does not provide the buyer with a copy of the executed contract, or

(iii) does not comply with the regulations,

and written notice of the rescission is served upon that seller.

(2) Where a seller receives a notice under subsection (1) he or she shall, not more than 15 days after the day on which the seller receives that notice, pay to the buyer all money paid to that seller including that paid into the trust account under paragraph 6(1)(a).

(3) Subsections (1) and (2) do not apply to a prepaid funeral contract entered into before the coming into force of this Act.

2000 cP-18.1 s9

Cancellation

10. (1) Where a buyer does not want funeral goods or funeral services to be provided under a prepaid funeral contract before the death of the beneficiary, the buyer may, in writing, cancel the prepaid funeral contract.

(2) Where a prepaid funeral contract is cancelled under subsection (1), the seller shall, not more than 15 days after receiving the cancellation, pay to the buyer, in accordance with the regulations, the funds of the buyer of that contract paid to the seller or placed into the trust account established under subsection 6(1) together with the interest on those funds.

(3) Where funds and interest are paid to a buyer under subsection (2), the buyer shall pay to the seller, in accordance with the regulations, an amount of money as a fee for the cancellation of the prepaid funeral contract.

2000 cP-18.1 s10

Seller to provide services

11. (1) Where, after the death of a beneficiary, the funeral services or funeral goods to be provided under the contract are not provided because they are not available at the time the funeral goods and funeral services are to be provided by the seller, the seller shall, at the option of the buyer or, where applicable, the personal representative of the beneficiary,

(a) provide, at the time that they are required, funeral goods and funeral services of an equal or greater value than those contracted for, at no additional cost to the buyer or personal representative of the beneficiary; or

(b) return to the buyer or personal representative of the beneficiary the funds given to the seller or deposited in the trust account under subsection 6(1) and interest on those funds, not more than 15 days after receiving a request for that return from the buyer or the personal representative of the beneficiary.

(2) Where funds are to be returned to a buyer or personal representative under paragraph (1)(b), the seller shall pay to the buyer or personal representative, in accordance with the regulations, an amount of money as a fee for the return of the funds and failure to provide the prepaid funeral contract.

2000 cP-18.1 s11

Appointment of examiners and investigators

11.1 The registrar may appoint persons as examiners and investigators to conduct examinations and investigations under this Act.

2010 c24 s3; 2017 c22 s8

Examination

12. (1) Where it is reasonably necessary to ensure compliance with this Act, a person appointed by the registrar 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 registrar may require the annual examination of a seller under this section or more frequent examinations where he or she considers it necessary.

2010 c24 s4; 2017 c22 s9

Search and seizure with warrant

13. (1) Where a person appointed by the registrar 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

(a) search;

(b) examine the contents of the premises and make those inquires that the person considers necessary; and

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.

2010 c24 s5; 2017 c22 s10

Powers of an examiner or investigator

13.1 (1) A person appointed by the registrar 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.

2010 c24 s6; 2017 c22 s11

Production order

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 registrar 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

(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.

2010 c24 s6; 2017 c22 s12

Protection order

13.3 (1) Where the registrar considers it necessary for the administration of this Act, the registrar 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 registrar 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 registrar 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 registrar may determine to all persons named in the direction.

2010 c24 s6; 2017 c22 s13

Protection of trust funds

13.4 (1) Where the registrar 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 registrar may act as trustee or, by order, appoint a person to act 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) The registrar shall deliver to the seller a copy of his or her decision to act as trustee or the order appointing a person to act as trustee under subsection (1).

(3) The registrar or a person appointed under subsection (1) shall be the trustee in respect of a trust property of the seller and shall in respect of that trust property take the place of a personal representative, committee or other representative of the seller.

(4) A seller may appeal to the Trial Division in accordance with the Rules of the Supreme Court, 1986 , from the decision of the registrar to act as trustee or an order made by the registrar appointing a person as trustee within 30 days after the delivery of a copy of the decision or order to the seller.

(5) The registrar may, in an order appointing a person as trustee under subsection (1), make provision for the remuneration, disbursements and indemnification of the trustee out of that money or otherwise as the registrar may specify.

2010 c24 s6; 2017 c22 s14

Regulations

14. The Lieutenant-Governor in Council may make regulations

(a) respecting the establishment and administration of trust accounts and funds to be paid into trust accounts required under this Act;

(b) respecting the establishment of a financial administration board under section 5 and the administration and duties of that board;

(c) respecting the administration and auditing of the assurance fund, books and records required to be maintained under this Act and the fiscal year of the assurance fund;

(d) respecting the administration and audit of trust accounts and the books and records to be maintained by sellers with respect to those trust accounts;

(e) respecting prepaid funeral contract rescission, cancellation and transfer compensation, fees and penalties;

(f) respecting the content and soliciting of prepaid funeral contracts;

(g) respecting the receipts, records and reports to be given and maintained with respect to prepaid funeral contracts;

(h) requiring the posting of security or bonds by sellers and the amount and type of security or bond;

(i) respecting the disposition and management of unclaimed funds paid with respect to prepaid funeral contracts and the period for which funds are to be maintained in a trust account;

(j) respecting the establishment and maintenance of the assurance fund, requiring sellers to contribute to the assurance fund and prescribing the amount and manner of making contributions to that fund;

(k) respecting the time by which audits, statements, records, information and payments into trust accounts and the assurance fund are to be made;

(l) respecting the transfer, rescission and cancellation of prepaid funeral contracts;

(m) respecting audits of sellers who entered into prepaid funeral contracts before the coming into force of this Act, the information required and amount and manner of contributing to the assurance fund with respect to those contracts; and

(n) generally to give effect to the purpose of this Act.

2000 cP-18.1 s14

Fees and forms

15. The minister may set fees and establish forms and the information to accompany those forms for the purpose and administration of this Act.

2000 cP-18.1 s15

Offence

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.

2010 c24 s7

Limitation period

16.1 A prosecution under this Act and the regulations shall not be started more than 2 years from the date the offence was discovered by the registrar.

2010 c24 s8; 2017 c22 s15

Immunity of registrar

16.2 An action or other proceeding for damages shall not be instituted against the registrar or any of his or her employees, agents or delegates for an act done in good faith in the performance of a duty or in the exercise or the intended exercise of a power under this Act or the regulations, or for a neglect or default in the performance or exercise in good faith of that duty or power.

2017 c22 s16

Transitional

17. (1) Notwithstanding that a seller entered into a prepaid funeral contract before the coming into force of this Act, that seller shall, not later than a time required by the regulations,

(a) provide to the registrar an audited statement and record of those prepaid funeral contracts entered into before the coming into force of this Act for which no funeral goods or funeral services have been provided; and

(b) pay into the trust account required under section 6 an amount of money determined in accordance with the amount of outstanding prepaid funeral contract liability of the seller immediately before the coming into force of this Act.

(2) Money paid into a trust account under paragraph (1)(b) shall be paid in the manner required by the regulations and over a period of not more than 5 years after the coming into force of this Act.

(3) Notwithstanding subsections (1) and (2), the registrar may, where, due to the extenuating circumstances of the seller, the registrar is of the opinion that payment into the trust account as required under section 6 and this section would cause unusual hardship to the seller, vary the amount of money to be paid into the trust account and extend the time required to make the payments into the trust account.

2000 cP-18.1 s17; 2017 c22 s17

Commencement

18. This Act shall come into force on a date to be proclaimed by the Lieutenant-Governor in Council. (In force - Dec. 22/00)

2000 cP-18.1 s18

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