Fair Trading Act AUTOMOTIVE BUSINESS AMENDMENT REGULATION ... · PDF filepublic for sale to other automotive businesses but ... but not including selling vehicles on consignment. (3)

THE ALBERTA GAZETTE, PART II, JANUARY 31, 2006

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Alberta Regulation 1/2006

Fair Trading Act

AUTOMOTIVE BUSINESS AMENDMENT REGULATION

Filed: January 9, 2006

For information only: Made by the Minister of Government Services (M.O. C001/2006) on January 5, 2006 pursuant to sections 105(1)(d), 139(h) and 140(3)(d) of the Fair Trading Act.

1 The Automotive Business Regulation (AR 192/99) is amended by this Regulation.

2 Section 1 is amended

(a) by renumbering it as section 1(1);

(b) in subsection (1)

(i) in clause (d) by striking out “the compensation fund” and substituting “the fund”;

(ii) by adding the following after clause (e):

(e.1) “consumer” means

(i) an individual who receives or has the right to receive goods or services for personal use from an automotive business as a result of a purchase, lease, gift, contest or other arrangement, but does not include an individual who intends to sell the goods after receiving them, or

(ii) a business with a commercial fleet of 5 or fewer vehicles that receives or has the right to receive goods or services for business use from an automotive business as a result of a purchase, lease, gift, contest or other arrangement, but does not include a business that intends to sell the goods after receiving them;

(iii) in clause (h) by striking out “motor”;

(iv) by repealing clause (i) and substituting the following:


AR 1/2006 FAIR TRADING

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(i) “recycler and dismantler” means a person who carries on the activities of purchasing and dismantling or disassembling wrecked, abandoned or damaged vehicles and selling

(A) the usable parts,

(B) the vehicle as a unit at wholesale, or

(C) the hulk of the vehicle after the usable parts have been removed;

(v) in clause (j) by striking out “motor”;

(vi) by adding the following after clause (j):

(k) “vehicle” means

(i) a motor vehicle as defined in the Traffic Safety Act, but does not include a motor cycle or off-highway vehicle as defined in that Act, and

(ii) a recreational vehicle intended to be towed that combines transportation and temporary living accommodations for the purpose of travel or camping;

(l) “wholesaler” means an automotive business that buys vehicles from, sells or consigns vehicles to or exchanges vehicles with other automotive businesses exclusively, and includes an automotive business that buys vehicles from members of the public for sale to other automotive businesses but not to consumers.

(c) by adding the following after subsection (1):

(2) The definition of “consumer” in section 1(1)(b) of the Act does not apply to this Regulation.

3 Section 2 is repealed.

4 Section 3(2) to (6) are repealed and the following is substituted:

(2) A person who holds an automotive sales licence is authorized to carry on a class or classes of the activity of buying or selling vehicles



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as specified by the Director, including, but not limited to, selling vehicles as

(a) a retailer,

(b) a wholesaler, or

(c) an agent or broker,

but not including selling vehicles on consignment.

(3) A person who holds an automotive leasing licence is authorized to carry on a class or classes of the activity of leasing vehicles as specified by the Director.

(4) A person who holds an automotive consignment licence is authorized to carry on a class or classes of the activity of selling vehicles on consignment as specified by the Director.

(5) A person who holds an automotive repair licence is authorized to carry on the activities of

(a) repairing vehicles,

(b) servicing vehicles,

(c) recycling and dismantling vehicles, or

(d) installing parts or equipment in vehicles

as specified by the Director on the licence.

(6) For the purposes of subsection (5), “installing” includes but is not limited to the installation of anti-theft systems, stereo, audio-visual and remote start systems and modification kits.

(7) A person who holds an automotive business licence is not authorized to carry on any class or classes of activities that are not specified on the licence.

5 Section 3.1 is repealed.



(b) in subsection (1)(b) by striking out “standards of conduct” and substituting “codes of conduct”;



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(2) The Director may require an applicant for a class of automotive business licence to furnish a security in a form and amount approved by the Director.

7 Section 5 is repealed and the following is substituted:

Term of licence 5(1) An automotive business licence has a term of one year and may be renewed for additional one-year terms.

(2) In a case where, in the opinion of the Director, it is in the public interest to issue or renew a licence referred to in section 3 for a term of less than one year, the Director may do so.


Death of business operator 6 If a business operator dies during the term of the licence, the licence is deemed to be held by

(a) the business operator’s executor,

(b) the administrator of the business operator’s estate, or

(c) the business operator’s next of kin where letters of administration have not been granted.

9 Section 8 is amended by striking out “licensee” and substituting “business operator”.


(a) by striking out “licensee” wherever it occurs and substituting “business operator”;

(b) by adding “create and” before “maintain financial records”;

(c) by striking out “engaged in the business” and substituting “carrying on the activities”.




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(a) by striking out “licensee” wherever it occurs and substituting “business operator”;

(b) by striking out “licensee’s” and substituting “business operator’s”.

12 The heading before section 11 is struck out and the following is substituted:

Codes of Conduct




(i) by striking out “licensee” wherever it occurs and substituting “business operator”;

(ii) by striking out “licensee’s” and substituting “business operator’s”;

(c) in subsection (1)(b) by adding “in the case of print and television advertising,” before “that”;

(d) by adding the following after subsection (1):

(2) A business operator must ensure that every advertisement for an automotive business that promotes the use or purchase of goods or services

(a) states whether the vehicle pictured in the advertisement is or is not the specific vehicle that is for sale,

(b) identifies vehicles that have been used as taxi cabs, police cars or emergency vehicles or that have been recertified when the previous use or condition of the vehicles is known to the business operator,

(c) does not misrepresent, through statements or omissions, a vehicle’s mechanical or structural condition,

(d) uses descriptions and makes promises only in accordance with actual conditions, situations and circumstances,

(e) does not use a font that due to its size or other visual characteristics is likely to materially impair the



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legibility or clarity of the advertisement and, without limiting the generality of the foregoing, in no case uses a font size smaller than 8 points,

(f) does not use the words, or words similar to, “demonstrator vehicle” or “demo vehicle” unless the vehicle in question was purchased new by the business operator and used solely for the normal business of the business operator,

(g) does not use the words, or words similar to, “savings”, “discount”, “percentage off the purchase price”, “free”, “invoice price”, “below invoice”, “dealer’s cost”, “at cost” or a price that is a specified amount above or below invoice or cost unless the claims represented by the words can be substantiated,

(h) does not use the words, or words similar to, “wholesale”, “take over payments” or “repossession” unless the claims represented by the words are objectively and demonstrably true,

(i) does not imply a warranty exists with respect to a vehicle or a repair or service unless such a warranty with respect to the vehicle, repair or service exists and is available at the price advertised,

(j) does not make comparisons or claims of superiority unless the results of the comparisons or the claims can be substantiated,

(k) does not offer a guaranteed trade-in allowance for any vehicle regardless of make, year or condition,

(l) includes in the advertised price for any vehicle the total cost of the vehicle, including, but not limited to, all fees and charges such as the cost of accessories, optional equipment physically attached to the vehicle, transportation charges and any applicable taxes or administration fees, but not including GST or costs and charges associated with financing, and

(m) includes the stock number of the specific vehicle that is advertised as being available for sale at the time the advertisement is placed.

14 Sections 12 to 15 are repealed and the following is substituted:



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General codes of conduct 12 Every business operator must comply with section 6 of the Act and in addition must

(a) not make any representations, statements or claims that are not true or are likely to mislead a consumer,

(b) use only timely, accurate, verifiable and truthful comparisons that can be supported with established and reliable data,

(c) not abuse the trust of a consumer or exploit any fear or lack of experience or knowledge of a consumer,

(d) not use undue, excessive or unreasonable pressure on a consumer to complete a transaction,

(e) not make any verbal representations regarding contracts, rights or obligations that are not contained in written contracts,

(f) not make any representation that savings, price benefits or advantages exist if they do not exist or if there is no evidence to substantiate the representation,

(g) not use threatening, intimidating, abusive or coercive language in discussions with a consumer,

(h) not charge a price for goods or services that is more than 10%, to a maximum of $100, higher than the estimate given for those goods or services unless

(i) the consumer has expressly consented to the higher price before the goods or services are supplied, or

(ii) if the consumer requires additional goods or services, the consumer and the supplier agree to amend the estimate in a consumer agreement,

(i) not make any representation to a consumer that the business has the ability to install equipment or to perform a particular repair or service unless the business has the equipment, tools and expertise necessary to complete the installation, repair or service,

(j) not subcontract repair work without the knowledge and prior consent of the consumer,

(k) when rebuilding or restoring a vehicle, do so in such a manner that it conforms to or exceeds the original



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manufacturer’s established standards or specifications and allowable tolerances for the particular model and year unless the consumer has consented in writing to a specific different standard before the rebuilding or restoration is done,

(l) not substitute used, rebuilt, salvaged or straightened parts for new replacement parts without the consumer’s knowledge and prior consent,

(m) provide the consumer in writing with information regarding the parts installed, including whether they are original equipment manufacturer’s parts or from another source, and whether they are new, used or reconditioned,

(n) offer to return all parts removed from the vehicle in the course of work or repairs to the consumer, and return them unless advised by the consumer that the consumer does not require the parts to be returned, and

(o) comply with any legislation that may apply to the selling, leasing, consigning, repairing, installing, recycling or dismantling of vehicles.


(a) in subsections (1) to (3) by striking out “licensee” wherever it occurs and substituting “business operator”;

(b) by repealing subsections (4) and (5) and substituting the following:

(5) A salesperson who acts on behalf of more than one business operator within the same class of automotive business licence must be registered separately in respect of each such business operator but is required to pay only one registration fee annually.

(c) in subsections (6) to (8) by striking out “licensee” wherever it occurs and substituting “business operator”.

16 Section 20.1 is repealed and the following is substituted:



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Acting on behalf of business operator 20.1 No business operator may allow a salesperson to act on the business operator’s behalf unless

(a) the salesperson is registered for the class of licence held by the business operator, and

(b) the business operator authorizes the salesperson to act on its behalf.


(a) in subsection (1) by striking out “licensee” wherever it occurs and substituting “business operator”;

(b) by repealing subsection (2) and substituting the following:

(2) The business operator must notify the Director either before the salesperson ceases to be authorized or within 15 days after the salesperson ceases to be authorized.

18 Section 25 is amended by striking out “licensee” wherever it occurs and substituting “business operator”.


Investments 26 Subject to section 28, the Council may invest the money in the compensation fund only in securities or classes of securities in which trustees are permitted to invest trust funds under the Trustee Act.


(a) in subsection (1)

(i) by striking out “an individual” and substituting “a consumer”;

(ii) by striking out “motor”;

(iii) by striking out “the individual” and substituting “the consumer”;

(b) in subsection (2) by striking out “motor”.



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(a) by striking out “motor” wherever it occurs;

(b) by repealing subsection (2)(c)(iv) and substituting the following:

(iv) the history of the vehicle within the consignor’s knowledge, setting out any special uses of the vehicle, such as police or taxi use, whether it was recertified and any other information that a reasonable buyer would want to be aware of;

(c) by repealing subsection (3)(c) and substituting the following:

(c) the business operator agrees to provide to the consignor, within 14 days of the date of sale of the vehicle, a copy of the bill of sale that sets out the purchase price for which the vehicle was sold.

22 The following is added after section 33:

Paying out proceeds 33.1(1) A business operator who enters into a consignment agreement to sell a consignor’s vehicle must, within 14 days of the date that the operator sells the vehicle,

(a) if the business operator has knowledge that the vehicle is subject to a lien,

(i) issue a cheque for the amount owing under the lien payable to the lienholder and take reasonable steps to ensure that the lienholder receives the amount owing, and

(ii) provide to the consignor a cheque payable to the consignor for the consignor’s share of the purchase price, being the purchase price less the amount payable to the lienholder and the business operator’s disbursements, fees and commissions, and a statement of account that meets the requirements of subsection (2),

and

(b) in any other case, provide to the consignor a cheque payable to the consignor for the consignor’s share of the



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purchase price, being the purchase price less the business operator’s disbursements, fees and commissions, and a statement of account that meets the requirements of subsection (2).

(2) The statement of account must set out

(a) the amounts required to pay out any outstanding liens on the vehicle,

(b) a description of any vehicle or other personal property received as consideration for the sale of the consignor’s vehicle and the value assigned to the vehicle or other property, and

(c) the amount payable to the consignor.

Other property received 33.2 A business operator who has entered into a consignment agreement to sell a consignor’s vehicle and has received as consideration for the sale of the consignor’s vehicle another vehicle or other personal property must, within 14 days of the date of the sale of the consignor’s vehicle,

(a) give the other vehicle or personal property to the consignor, or

(b) deal with the vehicle or personal property in accordance with the written instructions of the consignor.

Compliance with deemed terms 33.3 A business operator who enters into a consignment agreement must comply with the terms that are, under section 33(3), deemed to be contained in the consignment agreement.

23 Section 34(1) is amended

(a) by striking out “section 9” and substituting “section 3(7), 9”;

(b) by striking out “13 or 33(4)” and substituting “33(4), 33.1 or 33.2”.

24(1) Subject to subsection (2), this Regulation comes into force on the coming into force of the Fair Trading Amendment Act, 2005.

(2) Sections 13, 14 and 21(c) come into force on March 1, 2006.


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Cancer Programs Act

CANCER PROGRAMS AMENDMENT REGULATION


For information only: Made by the Minister of Health and Wellness (M.O. 03/2006) on January 4, 2006 pursuant to section 22 of the Cancer Programs Act.

1 The Cancer Programs Regulation (AR 242/98) is amended by this Regulation.



(i) by striking out “initially”;

(ii) by striking out “for 30 days”;

(b) by repealing subsection (2).

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Fair Trading Act

COLLECTION PRACTICES AMENDMENT REGULATION


For information only: Made by the Minister of Government Services (M.O. C002/2006) on January 11, 2006 pursuant to sections 1(2), 118, 139, 143 and 162(2) of the Fair Trading Act.

1 The Collection Practices Regulation (AR 194/99) is amended by this Regulation.

2 The title of the Regulation is repealed and the following is substituted:

COLLECTION AND DEBT REPAYMENT PRACTICES REGULATION




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Interpretation

Definitions 1 In this Regulation,

(a) “Act” means the Fair Trading Act;

(b) “collection agency” means a person, other than a collector or debt repayment agent,

(i) who carries on the activities of collecting or attempting to collect a debt or debts from a debtor in Alberta under any name that differs from that of the creditor to whom the debt is or was originally owed, regardless of to whom or where the payment is made,

(A) on behalf of another person, or

(B) where the person has purchased a debt or debts that is or are in arrears,

but does not include

(C) a person who is collecting or attempting to collect a debt of which the person is the original creditor or owner,

(D) a business that purchases a debt or debts through acquiring or merging with a business in a transaction that includes the transfer of accounts receivable,

(E) a business that acquires a debt or debts through the seizure of accounts receivable under a security agreement, or

(F) a person to whom the contract that gave rise to the debt was assigned for the purpose of financing the transaction,

or

(ii) who carries on the activities of a debt repayment agency;

(c) “collector” means an individual employed or authorized

(i) by a collection agency to carry on the activities of a collector by



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(A) collecting or attempting to collect a debt or debts from a debtor,

(B) locating debtors in Alberta, or

(C) acting for or dealing with a debtor,

or

(ii) by a debt repayment agency to carry on the activities of a debt repayment agent;

(d) “contact” means communications by telephone, facsimile, e-mail, automated call system, text messaging or in person, including messages left for a debtor with another person or by voicemail or on an answering machine, or any other form of communication not specifically excluded, but does not include communications that the debtor has expressly consented to or solicits in advance;

(e) “creditor” means a person to whom a debtor owes a debt or who has extended credit to a debtor, including, but not limited to, credit in the form of a sale on credit, a loan of money or the provision of goods and services;

(f) “debt” means a monetary obligation enforceable at law owed by a debtor in Alberta, including, but not limited to, a purchase on credit, accounts receivable, a loan of money or the provision of goods or services;

(g) “debt repayment agency” means a collection agency that carries on the activities of offering or undertaking to act for a debtor in Alberta in arrangements or negotiations with the debtor’s creditors or receiving money from a debtor for distribution to the debtor’s creditors in consideration of a fee, commission or other remuneration that is payable by the debtor;

(h) “debt repayment agent” means a collector employed or authorized by a debt repayment agency to act for or deal with debtors;

(i) “debtor” means an individual who has an obligation for a debt, including, but not limited to, the owner of a sole proprietorship, a member of a partnership or an individual who has provided a personal guarantee;



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(j) “express consent” means consent in a verifiable form, including, but not limited to, writing and audio recordings;

(k) “representative” means a person, other than the debtor, that a collection agency or collector has the express consent of the debtor to contact and communicate with about the debt, but does not include a minor child.


Licences 3(1) The following classes of licence are established:

(a) a collection agency licence;

(b) a debt repayment agency licence;

(c) a collector’s licence;

(d) a debt repayment agent’s licence.

(2) No person may carry on the activities of a collection agency described in section 1(b)(i) unless the person holds a collection agency licence.

(3) No person may carry on the activities of a debt repayment agency described in section 1(b)(ii) unless the person holds a debt repayment agency licence.

(4) No individual may carry on the activities of a collector described in section 1(c) unless the individual holds a collector’s licence.

(5) No individual may carry on the activities of a debt repayment agent described in section 1(h) unless the individual holds a debt repayment agent’s licence.

(6) Notwithstanding subsection (4), a collector who proposes to carry on the activities of a debt repayment agent for a debt repayment agency is required to hold only a debt repayment agent’s licence.

(7) No person may hold at the same time

(a) a collection agency licence, and

(b) a debt repayment agency licence.

(8) No individual may hold at the same time



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(a) a collector’s licence, and

(b) a debt repayment agent’s licence.

Misrepresentation 3.1(1) No person may represent itself as carrying on the activities

(a) of a collection agency unless the person holds a collection agency licence, or

(b) of a debt repayment agency unless the person holds a debt repayment agency licence.

(2) No individual may represent himself or herself as carrying on the activities

(a) of a collector unless the individual holds a collector’s licence, or

(b) of a debt repayment agent unless the individual holds a debt repayment agent’s licence.


Registered location 4(1) All locations at which collection activity or debt repayment activity occurs must be registered with the Director.

(2) A collection agency or debt repayment agency must direct debtors

(a) to make payments at and otherwise communicate through a registered location, or

(b) to deal directly with the creditor of the debt.

(3) All collection agency activity or debt repayment agency activity must be conducted at a registered location and entered on the systems of the collection agency or debt repayment agency.

6 Sections 5 to 9 are repealed and the following is substituted:

Term of licences 5(1) The term of a licence for a collection agency or debt repayment agency expires on the last day of the 12th month after it is issued or renewed.



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(2) The term of a licence for a collector or debt repayment agent expires when the collection agency or debt repayment agency licence of the business for which the collector or debt repayment agent acts expires.

Fees 6(1) The fee to issue or renew a collection agency or debt repayment agency licence is $168.

(2) The fee to issue or renew a collector’s or debt repayment agent’s licence is $72.

(3) The fee to issue an amended licence for a collection agency, debt repayment agency, collector or debt repayment agent, including the transfer of a collector’s licence or debt repayment agent’s licence to a different collection agency or debt repayment agency, is $40.

General Licensing and Security Regulation 7 The General Licensing and Security Regulation (AR 187/99) applies to collection agencies, debt repayment agencies, collectors and debt repayment agents.

Security 8(1) No licence that authorizes a collection agency or debt repayment agency to act for creditors or debtors may be issued or renewed unless the applicant submits to the Director a security in a form and an amount approved by the Director.

(2) The Director may, if the Director considers it appropriate, increase the amount of the security that is to be provided by a licensee before the term of the licence expires.

Cessation of employment 9 When a collection agency ceases to employ a collector, or a debt repayment agency ceases to employ a debt repayment agent, the agency must send to the Director within 15 days written notification of

(a) the name of the collector or the debt repayment agent, as the case may be, and

(b) the date that the collector or the debt repayment agent ceased to be employed by or authorized to act on behalf of the agency.





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(i) by adding “or debt repayment agency” after “collection agency” wherever it occurs;

(ii) by adding “or debt repayment agents” after “collectors”;



(ii) by adding “or debt repayment agents” after “collectors”;

(c) in subsection (3)

(i) by adding “or debt repayment agent” after “collector” wherever it occurs;

(ii) by adding “or debt repayment agent’s” after “collector’s”;

(d) in subsection (4) by adding “or debt repayment agent” after “collector” wherever it occurs;

(e) by adding the following after subsection (4):

(5) When the name of a collection agency, debt repayment agency, collector or debt repayment agent changes, no collection activity or debt repayment activity may be undertaken until an amended licence has been issued

(a) for a collection agency or debt repayment agency under subsection (2), or

(b) for a collector or debt repayment agent under subsection (4).


(a) by repealing subsection (1) and substituting the following:

Change in business address 11(1) When the business address of a collection agency or debt repayment agency changes, the collection agency or debt repayment agency must, within 15 days after the change of address, return its licence to the Director and ensure that all of the licences of its collectors or debt repayment agents are returned to the Director.



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(ii) by adding “or debt repayment agents” after “collectors”.


Prohibited practices for collection agencies 12(1) No collection agency or collector may

(a) collect or attempt to collect money for a creditor except on the belief in good faith that the money is due and owing by the person to the creditor;

(b) charge any fee to a person for whom the collection agency or collector acts in addition to those fees provided for in the agreement with that person;

(c) if a collection agency,

(i) carry on the activities of a collection agency in a name other than the name in which it is licensed unless it has received the approval of the Director to do so, or

(ii) when using an automated call system, fail to identify the debtor by name when the call is answered by another person or when leaving a message for the debtor, or to provide a contact number for the debtor to call;

(d) if a collector, collect or attempt to collect a debt without providing

(i) the collector’s name as shown on the collector’s licence in all contacts and correspondence, and

(ii) the name of the collection agency as shown on the collection agency licence in all contacts and correspondence with the debtor;

(e) make any arrangement with a debtor to accept a sum of money that is less than the amount of the balance due and owing to a creditor as final settlement without the prior express consent of the creditor;



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(f) fail to provide any person for whom the collection agency or collector acts with a written report on the status of that person’s account in accordance with this Regulation;

(g) make any personal call or telephone call for the purpose of collecting or attempting to collect a debt on any day except between 7 a.m. and 10 p.m. in Alberta;

(h) directly or indirectly threaten or state an intention to proceed with any action for which the collection agency or the collector does not have the prior express consent of the creditor or for which there is no lawful authority;

(i) contact or attempt to contact the debtor, any member of the debtor’s household, any relative of the debtor, the debtor’s employer or any neighbour, friend or acquaintance of the debtor by any means in such a manner as to constitute harassment, including without being limited to

(i) the use of threatening, profane, intimidating or coercive language,

(ii) the use of undue, excessive or unreasonable pressure, or

(iii) the use of telephone or e-mail to call or send messages excessively;

(j) give any person, directly or indirectly, by implication or otherwise, any false or misleading information, including, but not limited to, references to the police, a law firm, prison, credit history, court proceedings or a lien or garnishment;

(k) continue to collect or attempt to collect money from, or continue to communicate with,

(i) the person, where the person has informed the collection agency or the collector that the person is not the debtor, unless the collection agency or collector first takes all reasonable precautions to ensure that the person is in fact the debtor, or

(ii) the debtor, where the debtor has informed the collection agency or the collector by any verifiable means, including, but not limited to, personal service, certified mail, courier, facsimile, or e-mail, or by any other method, that the debt is in



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dispute and that the debtor wishes the creditor to take the matter to court;

(l) contact a debtor’s spouse or adult interdependent partner, relative, neighbour, friend or acquaintance unless the contact is limited to the purpose of obtaining the debtor’s residential address, personal telephone number or employment telephone number;

(m) contact the debtor’s employer for any purpose other than to confirm the debtor’s employment status, business title and the address of the business, in preparation for legal proceedings;

(n) contact the debtor when the debtor has notified the collection agency in writing to communicate only with the debtor’s representative and has provided a current address and telephone number for the representative, and the representative

(i) makes reasonable arrangements to discuss the debt with the collection agency or collector, and

(ii) discusses the debt with the collection agency or collector in accordance with the arrangements;

(o) contact a debtor at the debtor’s place of employment if the debtor

(i) requests the collection agency or collector not to contact the debtor there,

(ii) makes reasonable arrangements to discuss the debt with the collection agency or collector, and

(iii) discusses the debt with the collection agency or collector in accordance with the arrangements;

(p) communicate information about the debt or the existence of the debt with any person except the debtor, a guarantor of the debt, the debtor’s representative or the creditor of the debt unless the debtor has expressly consented to the communication;

(q) indicate to the debtor or any other person contacted for the purpose of collecting the debtor’s debt that the collection agency or the collector is part of a law firm or the legal department of a business, including a legal department of the collection agency itself or of the creditor of the debt;



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(r) if a collector, indicate to a debtor that the collector is a legal collector, litigation specialist or the like;

(s) charge any fee to a debtor beyond the debt that is due and owing from the debtor to the creditor, excluding a reasonable fee for a dishonoured cheque, if the fee was disclosed to the debtor in writing prior to the submission of the cheque;

(t) refuse to provide sufficient information on request to the debtor to ensure that the debtor is aware of the identity of the original and current creditor of the debt and the details of the debt;

(u) enter into or arrange wage assignments with a debtor or the employer of a debtor;

(v) exceed 3 unsolicited contacts on behalf of the same creditor with a debtor in any period of 7 consecutive days, not including contacts with a third party to locate a debtor, mistaken contact with a third party, or contacts by traditional mail;

(w) cancel or alter a payment agreement with a debtor if the debtor has complied with the terms of the agreement and the debtor’s financial circumstances have not changed materially, unless the debtor has misrepresented the debtor’s financial circumstances;

(x) pursue a non-judgment debt where the last payment or written acknowledgement by the debtor is more than 6 years previous;

(y) do anything that is prohibited by this Regulation.

(2) A term of an agreement entered into by a collection agency is void if that term

(a) misrepresents the rights and powers of a person collecting or attempting to collect a debt,

(b) misrepresents the obligations or legal liabilities of a debtor,

(c) is misleading as to its true nature and purpose, or

(d) otherwise contravenes the Act or this Regulation.

(3) Notwithstanding section 110(2) of the Act, a collection agency must not enter into an agreement or contract with or make a



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request of a representative or employee of the collection agency who is exempt under that section to undertake any action that contravenes this section.

(4) Subsection (1)(m), (v) and (w) come into force on March 1, 2006.

Prohibited practices for debt repayment agencies 12.1(1) No debt repayment agency or debt repayment agent may

(a) if a debt repayment agent, collect or attempt to collect a debt without providing in all contacts and correspondence with the debtor and creditors

(i) the agent’s name as shown on the debt repayment agent’s licence, and

(ii) the name of the debt repayment agency as shown on the debt repayment agency licence;

(b) collect from a debtor any amount greater than that prescribed by this Regulation for acting for the debtor in making arrangements or negotiating with the debtor’s creditors on behalf of the debtor or receiving money from the debtor for distribution to the debtor’s creditors;

(c) make any arrangement with a debtor to accept a sum of money that is less than the amount of the balance due and owing to a creditor as final settlement without the prior express consent of the creditor;

(d) fail to provide any person for whom the debt repayment agency or debt repayment agent acts with a written report on the status of that person’s account in accordance with this Regulation;

(e) give any person, directly or indirectly, by implication or otherwise, any false or misleading information, including, but not limited to, references to the police, a law firm, prison, credit history, court proceedings or a lien or garnishment;

(f) charge a fee for a dishonoured cheque unless the fee was included in the debt repayment agreement with the debtor;

(g) charge or receive any fee in the form of a promissory note or other negotiable instrument other than a cheque or draft;



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(h) lend money or provide credit to a debtor;

(i) offer, pay or give any gift, bonus, premium, reward or other compensation to a debtor for entering into a debt repayment agreement;

(j) directly or indirectly collect any fee for referring, advising, procuring, arranging for or assisting a debtor in obtaining any extension of credit from a lender, creditor or service provider;

(k) make a claim for breach of contract against a debtor who cancels a debt repayment agreement;

(l) fail to inform a debtor within 30 days after the creditor has notified the debt repayment agency that the creditor has decided not to participate in or has withdrawn from a debt repayment program;

(m) communicate information about the debt or the existence of the debt with any person except the debtor, a guarantor of the debt, the debtor’s representative or the creditor of the debt.

(2) No debt repayment agency may collect or retain from the debtor a fee, commission or disbursement for its services unless before providing the service it has

(a) entered into a written agreement signed by the debt repayment agency and the debtor to provide the service, or it has obtained written authorization signed by the debtor to provide the service, and

(b) delivered a copy of the agreement or authorization under clause (a) to the debtor.

(3) A written agreement under subsection (2)(a) must

(a) be dated and signed by the debt repayment agency and the debtor,

(b) include the name, address and telephone number of the debtor and the name, address, telephone number and, if available, fax number and e-mail address of the debt repayment agency,

(c) describe all the services that are to be provided under the agreement,



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(d) state all fees, separately itemized, that are to be paid by the debtor,

(e) list all creditors as disclosed by the debtor to whom payments will be made under the agreement, and

(f) state the total amount owed, the payment amount, the schedule of payments to be made and the total number of payments for each listed creditor.

(4) No debt repayment agency may charge a debtor a fee that exceeds,

(a) in the case of a debt repayment agreement that includes a schedule of payments, the sum of

(i) a one-time administration fee that is not higher than the average monthly payment as set out in the debt repayment agreement, and

(ii) 15% of the scheduled payment amount received from or on behalf of the debtor by the debt repayment agency,

or

(b) in the case of a one-time payment to a creditor or creditors, or an agreement to negotiate on the debtor’s behalf with a creditor or creditors identified in the debt repayment agreement, 10% of the debt owing.

(5) A fee under subsection (4)(b) may be charged to the debtor by the debt repayment agency only after a settlement acceptable to the debtor has been successfully negotiated with the creditor or creditors.

(6) Subsection (1)(l) comes into force on March 1, 2006.

10 Section 13 is amended by adding “or debt repayment agency” after “No collection agency”.

11 Section 14 is amended by adding “or debt repayment agency” after “a collection agency”.




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Trust established 15(1) A collection agency is the trustee of any money collected on behalf of another person.

(2) A debt repayment agency is the trustee of any money received from a debtor for distribution to the debtor’s creditors.


Trust account 16(1) Unless subsection (2) applies, a collection agency or debt repayment agency must deposit all of the money collected on behalf of another person or received from a debtor for distribution to the debtor’s creditors, without making any deduction, within 3 days of collecting or receiving the money into a trust account maintained in a bank, loan corporation, trust corporation, credit union or treasury branch in Alberta.

(2) The Director may

(a) authorize a collection agency or debt repayment agency to maintain its trust account in a class of financial institution approved by the Director that is located outside Alberta, and

(b) prescribe the time when the money referred to in subsection (1) is to be deposited into the trust account.

14 Section 17 is amended by adding “or debt repayment agency” after “No collection agency”.


(a) by adding “or debt repayment agency” after “collection agency” wherever it occurs;


(i) by adding the following after clause (b):

(b.1) returning money collected from a debtor by a debt repayment agency if the debt repayment program is rejected by the creditor or cancelled,

(ii) by adding “or 19.1” after “under section 19”;




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(2.1) A debt repayment agency that pays creditors from money withdrawn from its trust account must do so by means of consecutively numbered cheques and must provide the creditor with a statement containing

(a) the name of the debtor, and

(b) the amount of the payment.

16 Section 19(1) is amended by adding “within 15 days of the end of the 6-month period” after “Minister of Finance in trust”.


Unable to locate missing debtors 19.1(1) If a proposed debt repayment program has been rejected and the debt repayment agency is unable to locate the debtor who is entitled to money collected or received by the debt repayment agency from that debtor within 6 months after the rejection of the proposed debt repayment program, the debt repayment agency must pay the money that has been collected or received by it, less its fees, commissions and disbursements, to the Minister of Finance in trust within 15 days of the end of the 6-month period.

(2) The Minister of Finance may, on receiving an application and any information the Minister of Finance requires, pay the money received under subsection (1) to the debtor.

(3) If the Minister of Finance does not receive an application by the debtor for money paid under subsection (1) within 5 years from the time that the money is paid to the Minister of Finance, the money must be paid into the General Revenue Fund and all claims to the money by the debtor entitled to it are extinguished.


(a) by striking out “engage in the business” and substituting “carry on the activities”;

(b) by adding “or debt repayment agency” after “collection agency” wherever it occurs;

(c) in clause (a) by adding “complete and accurate” before “register”;

(d) by repealing clause (b) and substituting the following:



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(b) make the register available for inspection by an inspector at a place in Alberta and at a time specified by the inspector, and

19 The heading preceding section 21 and section 21 are repealed and the following is substituted:

Requirements for Receipts, Reports and Records

Receipts 21(1) Every collection agency and debt repayment agency must acknowledge the receipt of all cash transactions, payments made in person, or payments made at the debtor’s request that the collection agency or debt repayment agency or a collector, debt repayment agent or employee collects or receives from a debtor for distribution to the debtor’s creditors by means of receipts that meet the requirements of subsection (2).

(2) The receipts referred to in subsection (1) must contain

(a) the date the amount is collected or received,

(b) the name of the debtor,

(c) the name of the person for whom the collection agency or debt repayment agency acts, and

(d) the amount received from the debtor.

Settlement agreements 21.1 If a collection agency or a collector reaches a settlement agreement with a debtor, the collection agency or collector must, when the amount set out in the settlement agreement has been paid in full, provide to the debtor a receipt containing

(a) the amount paid,

(b) the name of the creditor or creditors, and

(c) a statement that the amount received is in final settlement of the debt or debts owing.

Audits 21.2(1) A collection agency or debt repayment agency must,

(a) within 120 days after

(i) the end of its fiscal year, and



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(ii) the cessation of operations,

provide the Director with a report of its financial affairs in a form established by the Director and signed by an independent auditor acceptable to the Director, and

(b) provide the auditor with access to every book and record of the collection agency or debt repayment agency that, in the opinion of the auditor, is necessary to carry out the examination.

(2) The Director may order a collection agency or debt repayment agency to correct, within a specified time, any defect or deficiency in the form or maintenance of any book or record.

20 Section 22(1) is amended by striking out “section 116(1)(g) of the Act” and substituting “section 12(1)(f)”.


Reports to debtors 23(1) For the purposes of section 12.1(1)(d), a written report that is provided to a debtor by a debt repayment agency must contain the following information:

(a) the gross amount received by the debt repayment agency from or on behalf of the debtor;

(b) the amount and date of payments made on behalf of the debtor and to whom they were made;

(c) any fee, commission or disbursement retained by the debt repayment agency.

(2) A debt repayment agency must provide, without charge, the written report referred to in subsection (1) to the debtor for which the debt repayment agency acts once every 60 days that the agency is acting for the debtor.

Credit reporting 23.1 A collection agency that has reported a debt to a credit reporting agency must inform the credit reporting agency of any change in the status of the account within 35 days of the change.

Accounting 23.2(1) A collection agency must provide the debtor on request with a complete accounting of all the details of the debt and, if such an accounting is not in the possession of the collection agency, the agency must request that the creditor provide it.



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(2) If, within 30 days after receiving a request for an accounting from a collection agency, the creditor has not provided a complete accounting of the debt, the collection agency must

(a) inform the debtor in writing that it cannot provide the accounting and the reasons for it, and

(b) cease all collection activity for that account and not resume collection activity until the accounting is provided.

(3) A debtor may request a complete accounting only once every 6 months, unless the collection agency fails to provide the complete accounting as requested.

(4) This section comes into force on March 1, 2006.

Records 23.3(1) Each collection agency and debt repayment agency must create and maintain the following records of its activities:

(a) in the case of a collection agency, contracts with creditors;

(b) in the case of a debt repayment agency, contracts with debtors;

(c) trust account records;

(d) records relating to receipts issued and disbursements made;

(e) a log of telephone calls relating to collection activities;

(f) records relating to collection activities, including, but not limited to, records of contact such as note lines;

(g) settlement or debt repayment agreements with debtors;

(h) authorization to sue on behalf of a creditor;

(i) authorization from a creditor to accept a debt repayment program;

(j) records relating to missing creditors and debtors and the paying of funds to the Minister of Finance;

(k) records relating to debtors;

(l) reports and corrections sent to reporting agencies;



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(m) copies of all correspondence related to collection activities or debt repayment activities, including, but not limited to, letters, e-mails and faxes to a debtor, a debtor’s representative, a debtor’s employer or a bank with respect to the finances of a debtor;

(n) records of instructions to a lawyer, law firm or legal representative to commence or continue proceedings in a court of law to obtain or enforce a judgment against a debtor;

(o) in the case of a collection agency, records relating to the history of a debt at the time of assignment by the creditor or purchase by the collection agency;

(p) in the case of a debt repayment agency, records relating to debt repayment programs, including, but not limited to, the negotiation of a debt repayment program with creditors;

(q) a record or log of any debt repayment agreement negotiated with a debtor, including details of the amount of the payments, the schedule of payments and the total number of payments;

(r) any other record considered necessary by the Director.

(2) A record referred to in subsection (1) must be retained by the collection agency or debt repayment agency that created it for a minimum of 3 years after the record is made.

Exemption 23.4 Sections 12, 19 and 23.2 do not apply to debt repayment agencies or to debt repayment agents.


(a) by striking out “4,” and substituting “3.1(1) or (2), 4,”;

(b) by striking out “12,” and substituting “12(1) or (3), 12.1(1), (3) or (4),”;

(c) by striking out “20, 22(2) or 23(2)” and substituting “20, 21(1), 21.1, 21.2(1), 22, 23(1) or (2), 23.1 or 23.2(2)(b)”.

23 This Regulation comes into force on the coming into force of the Fair Trading Amendment Act, 2005.


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Fair Trading Act

ENERGY MARKETING AMENDMENT REGULATION


For information only: Made by the Minister of Government Services (M.O. C:004/2006) on January 12, 2006 pursuant to sections 4.1, 105(1), 139 and 162(2) of the Fair Trading Act.

1 The Energy Marketing Regulation (AR 246/2005) is amended by this Regulation.

2 Section 2(2) is amended by adding the following after “section 14”:

section 16; section 17.

3 Section 9 is amended by adding “or a Telephone marketing contract” after “Internet marketing contract”.

4 Section 10(1)(a)(xi) is amended by striking out “cost or”.


Part 2.1 Telephone Marketing Contract

Digital format 11.1 If a marketing contract is entered into by telephone, the entire telephone call must be recorded in a digital format and maintained by the marketer for the duration of the marketing contract.

Copy of recording 11.2 A copy of the digital telephone recording must be provided to the consumer or an inspector on request.

Initial contact 11.3 A Telephone marketing contract may be entered into when

(a) the marketer initiates the telephone call to the consumer, or



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(b) the consumer initiates the telephone call to the marketer.

Duties relating to documentation 11.4(1) A marketer

(a) must ensure that for each Telephone marketing contract the marketer enters into with a consumer the marketer

(i) identifies himself or herself,

(ii) states that the telephone call is being recorded and the consumer must consent to the telephone call being recorded,

(iii) verifies the consumer’s name, address and telephone number,

(iv) for telephone marketing contract renewals, verifies the person on the telephone the marketer is speaking to is the account holder and is authorized to renew the marketing contract,

(v) states that the Telephone marketing contract is not an electricity or a gas utility government rebate program,

(vi) states that the marketer may not be able to supply energy cheaper than the consumer’s current utility company,

(vii) states whether or not the consumer will be responsible to buy energy under the Telephone marketing contract if the consumer moves to another location in Alberta,

(viii) states a specified or ascertainable expiry date of the Telephone marketing contract,

(ix) states a specified or ascertainable date on which the supply of energy is to begin,

(x) specifies any charges for the supply of energy provided for under the Telephone marketing contract, including any exit fees that may be directly or indirectly charged by an owner of an electric distribution system,

(xi) states that the consumer may cancel the Telephone marketing contract without cost or penalty within 10 days after a copy of the Telephone marketing contract is received by the consumer,



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(xii) states that the consumer may cancel the Telephone marketing contract without cost or penalty if a marketing contract, including another Telephone marketing contract, presently exists for the same property, except where the existing marketing contract is to expire on or before the commencement of the new marketing contract,

(xiii) states that the consumer may cancel the Telephone marketing contract without penalty within 60 days after receiving the first billing statement,

(xiv) states the consumer may cancel the Telephone marketing contract without penalty within one year from the date the Telephone marketing contract is entered into if the marketer

(A) does not set out in the Telephone marketing contract a specified or ascertainable date on which the supply of energy is to begin,

(B) does not begin the supply of energy within 30 days of the date referred to in subclause (viii) or an amended date agreed on in writing or electronic form by the consumer and the marketer, or

(C) was not licensed under Part 1 at the time the Telephone marketing contract was entered into,

and

(xv) confirms the consumer understands the terms and conditions and price of energy in the Telephone marketing contract and obtains the consumer’s consent for the Telephone marketing contract,

and

(b) must state that a written copy of the Telephone marketing contract will be mailed to the consumer and will include details the consumer has consented to under clause (a) including the marketer’s name, address, telephone number, e-mail address and, if available, fax number.

(2) If, after the 30-day period referred to in subsection (1)(a)(xiv)(B) has expired, the consumer expressly authorizes the supply of energy to begin, the consumer may not cancel the



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Telephone marketing contract pursuant to subsection (1)(a)(xiv)(B).

Marketer bound by Telephone marketing contract 11.5 A marketer is bound by the terms of a Telephone marketing contract when the consumer acknowledges the Telephone marketing contract.

6 Section 12(1) is amended

(a) in clause (b)(x) by striking out “cost or”;

(b) in clause (c) by striking out “in writing or electronic form” and substituting “in writing or by fax or e-mail”.


Part 3.1 Rural Electrification Associations

Definition 13.1 For the purposes of this Part,

(a) “owner” does not include a Rural Electrification Association.

(b) “Rural Electrification Association Marketing Contract” means a marketing contract entered into between a Rural Electrification Association and a member of a Rural Electrification Association;

Application 13.2(1) Subject to subsection (2), this Regulation applies to Rural Electrification Associations in relation to their activities as providers of energy services to a member of a Rural Electrification Association.

(2) The following provisions do not apply to a Rural Electrification Association Marketing Contract:

Part 1; section 10(1)(a)(xi)(C); section 12(1)(b)(x)(C); section 23.

Non-application 13.3 This Regulation does not apply to Rural Electrification Associations in relation to their activities as



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(a) providers of electricity services under a regulated rate tariff, or

(b) providers of distribution access services.


(a) in subsection (1)(a) by striking out “all”;

(b) in subsection (5) by striking out “cost or”.


(a) by adding the following after subsection (3):

(3.1) If consent under subsection (1) is provided by telephone, the entire telephone call must be recorded in a digital format and maintained by the marketer for the duration of the renewed marketing contract.

(3.2) A copy of the digital telephone recording must be provided to the consumer or an inspector on request.

(3.3) If the marketing contract is renewed by telephone,

(a) the marketer must identify himself or herself,

(b) the consumer must identify himself or herself and the consumer must confirm he or she is the account holder and is authorized to renew the marketing contract,

(c) the consumer must acknowledge acceptance of the renewed marketing contract,

(d) the consumer must confirm that the consumer has received a copy of the renewal notice,

(e) the consumer must confirm he or she understands the terms and conditions and price of energy in the renewed marketing contract,

(f) the consumer must confirm he or she understands the renewed marketing contract may be cancelled without penalty in accordance with subsection (2), and

(g) the marketer must state that the telephone call is being recorded.



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(b) in subsection (4) by striking out “in writing or electronic form” and substituting “in writing or by fax or e-mail”.


(a) in subsection (4) by adding “in writing or by fax or e-mail” after “subsection (2)”;

(b) by adding the following after subsection (4):

(4.1) If a consumer expressly accepts the notice of renewal by telephone, the entire telephone call must be recorded in a digital format and maintained by the marketer for the duration of the renewed marketing contract.

(4.2) A copy of the digital telephone recording must be provided to the consumer or an inspector on request.

11 Schedule 1 is amended by adding “or Telephone marketing contracts” after “For marketing contracts other than Internet marketing contracts”.

12 This Regulation comes into force on the proclamation of the Fair Trading Amendment Act, 2005.

Documents

Fair Trading Act AUTOMOTIVE BUSINESS AMENDMENT REGULATION ... · PDF filepublic for sale to other automotive businesses but ... but not including selling vehicles on consignment. (3)