Direct Sellers' Regulation Act

Short title

1 This Act may be cited as the Direct Sellers' Regulation Act. R.S., c. 129, s. 1; 1998, c. 8, s. 27.

Interpretation

2 In this Act,

(a) "direct sale" means a sale by a direct seller acting in the course of business as such;

(b) "direct sales contract" means an agreement whether verbal or in writing for the direct sale of goods or services;

(c) "direct seller" means a person who sells or offers for sale or solicits orders for the future delivery of goods or services by direct selling;

(d) "direct selling" means selling or offering for sale or soliciting orders for future delivery of goods or services where the first person-to-person contact is made by the salesperson outside of a retail outlet and includes sales resulting from a solicitation by a non-retailer to attend a place where selling, offering for sale or the solicitation of orders for the future delivery of goods or services occurs and sales conducted by a multi-level marketing wholesaler, a multi-level marketing distributor and the sale of hearing aids regardless of the circumstances of the sale;

(e) "goods" include any articles, commodities, substances or things and any agreement that entitles the holder thereof to purchase or obtain goods;

(f) "hearing aid" means any wearable instrument or device designed for or offered for the purpose of aiding or compensating for impaired human hearing and any parts, attachments or accessories including earmold, but excluding batteries;

(g) "merchant" does not include a person who has a recognized retail store if more than fifty per cent of the goods and services sold by him in the Province are sold by direct sale;

(h) "Minister" means the Minister of Consumer Affairs;

(i) "purchaser" means a person who agrees to purchase goods or services under a direct sales contract;

(j) "recognized retail store" does not include a dwelling, mail-order office, display room, office, repair or service shop, warehouse, studio, hotel, motel or any other place of a like nature notwithstanding that the owner or occupant thereof is or may be assessed by the municipality for business tax purposes in respect of such place;

(k) "Registrar" means the person appointed as Registrar for the purposes of this Act;

(l) "salesperson" means a person who sells or offers to sell or solicits orders for the future delivery of goods or services for or on behalf of a direct seller;

(m) "services" include

(i) the application or installation of goods sold under a direct sales contract,

(ii) the performance of work, labour or services of any type;

(n) "trade-in" means consideration given by a purchaser in a form other than money or an obligation to pay money. R.S., c. 129, s. 2; 1999, c. 8, ss. 1, 9.

Registrar

3 (1) The Governor in Council may appoint a person in the public service to be the Registrar for the purposes of this Act.

(2) If the Governor in Council has not appointed a person to be the Registrar for the purposes of this Act, then the Registrar of Credit shall be the Registrar for the purposes of this Act. R.S., c. 129, s. 3.

Powers and duties

4 The Registrar may exercise the powers and shall perform the duties conferred or imposed upon him by or under this Act under the supervision of the Minister. R.S., c. 129, s. 4.

Permit required

5 No person shall carry on the business of direct selling unless he is the holder of a permit under this Act. R.S., c. 129, s. 5; 1998, c. 8, s. 41.

Act does not apply

6 (1) This Act does not apply to a direct sales contract

(a) the subject of which is goods or services, the sale of which is regulated by a federal or provincial statute;

(b) the subject of which is the sale of food or drink for consumption by either humans or animals;

(c) the subject of which is the sale of a newspaper;

(d) the subject of which is the sale of goods or services which are sold by corporations which are owned or controlled or are agencies of either Her Majesty in right of Canada or Her Majesty in right of the Province or of any city, town, or municipality;

(e) made between a manufacturer or distributor and a wholesaler in respect of goods that the wholesaler intends to resell in the course of his business;

(f) made between a manufacturer, distributor or wholesaler and a retailer in respect of goods that the retailer intends to resell in the course of his business;

(g) under which a retailer is the purchaser of goods intended to be used in his business but not for resale;

(h) made by a merchant having a recognized retail store in the Province and selling goods or services of a class ordinarily sold at that store; or

(i) made by a person selling goods or services on behalf of an organization or corporation having objectives of a benevolent or charitable nature and not formed for gain.

(2) This Act does not apply to

(a) a member of a category of persons exempted by the regulations; or

(b) a person who participates in a category of sales exempted by the regulations. R.S., c. 129, s. 6; 1999, c. 8, s. 2.

Act does apply

7 Notwithstanding Section 6, this Act does apply to a direct sales contract where the subject of the contract is the sale of food or drink for human consumption and as part of the sale requires the purchase or rental of equipment to protect or preserve the food or drink. R.S., c. 129, s. 7.

Permits

8 (1) The Registrar may grant permits under this Act to direct sellers and salespersons.

(2) repealed 1999, c. 8, s. 3.

(3) The holder of a permit as a salesperson may only act as a direct seller for or on behalf of his employer direct seller whose name must be specified in his permit.

(4) No direct seller or salesperson shall in the course of carrying on the business of a direct seller sell or offer for sale or solicit orders for the future delivery of goods or services of any class or sort other than those specified in his permit. R.S., c. 129, s. 8; 1998, c. 8, ss. 28, 41; 1999, c. 8, ss. 3, 9.

Issuance of permit

9 (1) Upon receipt of an application for a permit and upon payment of the prescribed fee and upon delivery of such bond as may be required and upon meeting such conditions as may be required by the regulations, the Registrar shall issue to the applicant a permit authorizing the holder during the term thereof to carry on the business of a direct seller or a salesperson within the Province.

(2) Every permit shall be issued for a period of one year or such longer period as specified in the regulations and may be renewed on due application to the Registrar and payment of the prescribed fee and bonding unless previously cancelled or suspended.

(3) repealed 1998, c. 8, s. 29.

(4) repealed 1999, c. 8, s. 4.

(5) No person whose permit has been cancelled shall be entitled to a new permit for one year after the cancellation.

(6) When a permit has been suspended or cancelled by or under this Act, the holder of the permit shall forthwith return the permit to the Registrar. R.S., c. 129, s. 9; 1998, c. 8, ss. 29, 41; 1999, c. 8, ss. 4, 9.

Application for permit or renewal and bonding

10 (1) Every application for a permit or a renewal of a permit shall be made in writing upon the prescribed form to be provided by the Registrar and shall be accompanied by such fee as may be prescribed.

(2) Every application for an original permit shall be accompanied by a bond in such amount and form as may be prescribed by the regulations.

(3) Every application for a renewal of a permit shall be accompanied by a bond in such amount and form as is prescribed by the regulations.

(4) Notwithstanding the fact that Her Majesty in right of the Province has not suffered any loss or damages, every bond delivered to the Registrar under this Act shall be construed as being a penal bond and where any such bond is forfeited pursuant to this Act the amount due and owing as a debt to Her Majesty in right of the Province by the person bound thereby shall be determined as if Her Majesty suffered such loss or damages as would entitle Her Majesty to be entitled to the maximum amount of the liability prescribed by the bond. R.S., c. 129, s. 10; 1998, c. 8, s. 41.

Address for service

11 Every applicant for a permit or renewal of a permit shall state in the application a civic address for service in the Province, which address shall be at a place situate in the Province and all notices under this Act or the regulations shall be sufficiently served for all purposes if delivered or sent by prepaid mail to the latest address for service so stated. R.S., c. 129, s. 11; 1998, c. 8, s. 41; 1999, c. 8, s. 5.

Further information

12 The Registrar may require at any time any further information or material to be submitted by any applicant or any person issued a permit pursuant to this Act within a specified time limit and may require, if he so desires, verification by affidavit or otherwise of any information or material then or previously submitted. R.S., c. 129, s. 12; 1998, c. 8, s. 30.

Further information

13 Every direct seller and salesperson issued a permit pursuant to this Act shall notify the Registrar in writing of

(a) any change in address for service;

(b) any change in the case of the salesperson of employment by another direct seller; and

(c) in the case of a direct seller any partnership arrangements with other direct sellers or change in partnership arrangements. R.S., c. 129, s. 13; 1998, c. 8, s. 31; 1999, c. 8, s. 9.

Salespersons

14 (1) Every application for a permit as a salesperson shall be accompanied by a notice given by a direct seller issued a permit pursuant to this Act stating that the applicant if granted a permit is authorized to act as a salesperson representing that direct seller.

(2) A permit issued to a salesperson shall specify as the principal of the salesperson the direct seller who has given the notice accompanying the application for that permit pursuant to subsection (1). R.S., c. 129, s. 14; 1998,c. 8, ss. 32, 41; 1999, c. 8, s. 9.

Deemed agent

15 A salesperson who is the holder of a subsisting permit shall be deemed to be authorized by the direct seller specified in the permit to act for and on behalf of that direct seller. R.S., c. 129, s. 15; 1998, c. 8, s. 41; 1999, c. 8, s. 9.

Cancellation of salesperson's permit

16 (1) Where a salesperson ceases to represent a direct seller, that direct seller shall forthwith give notice in writing to the Registrar that that salesperson has ceased to represent him and the receipt of such notice by the Registrar shall operate as a cancellation of the permit of the salesperson.

(2) A direct seller who fails to give the notice mentioned in subsection (1) within five days after the salesperson has ceased to represent him is guilty of an offence under this Act. R.S., c. 129, s. 16; 1998, c. 8, s. 41; 1999, c. 8, s. 9.

Firms

17 (1) In this Section the word "firm" means

(a) a person who is the sole proprietor of a business and who uses as his business name a name other than his own or uses his own name with the addition of some other word or phrase; or

(b) persons who are associated as partners in a business,

and the name in which the firm carries on its business is called the firm name.

(2) A firm may apply for and obtain a permit as a direct seller in the firm name and no firm shall carry on a business as a direct seller under a name other than the name shown in its permit.

(3) Every firm shall in its application for a permit state the firm name and, if a sole proprietor the name of the sole proprietor or, if a partnership, the names of the partners.

(4) The permit if granted to the firm shall be deemed to be issued in the name of the sole proprietor or in the names of the partners as the person or persons carrying on the business in the firm name.

(5) Any change in the membership of a firm or in the name thereof shall be deemed to create a new firm and to terminate any existing permit. R.S., c. 129, s. 17; 1998, c. 8, s. 41.

Restrictions on, suspension or cancellation of permit

18 (1) Every permit granted under this Act shall be subject to such terms, conditions and restrictions as may be prescribed by the regulations.

(2) Where the Registrar is satisfied that the holder of a permit has

(a) violated this Act or the regulations or has failed to comply with any of the terms, conditions or restrictions to which the permit is subject;

(b) made a material mis-statement in the application for the permit or in any other information or material submitted by the holder of the permit to the Registrar;

(c) been guilty of misrepresentation, fraud or dishonesty; or

(d) demonstrated the permit holder's incompetency or untrustworthiness to carry on the business in respect of which the permit was granted,

the Registrar may

(e) enter into an agreement for voluntary compliance with the holder of the permit;

(f) order restitution to consumers;

(g) fine the holder of the permit;

(h) suspend or cancel the permit, with or without conditions;

(i) make an order with respect to costs or expenses related to the proceedings;

(j) require that the bond amount to be posted by the holder of a permit be increased.

(3) Where the permit of a direct seller is suspended or cancelled, the permits of all salespersons of the direct seller shall likewise be automatically suspended or cancelled as the case may be. R.S., c. 129, s. 18; 1998, c. 8, ss. 33, 41; 1999, c. 8, ss. 6, 9.

Transfer of permit prohibited

19 (1) The transfer of the permit of a salesperson from one direct seller to another is prohibited.

(2) Where a salesperson whose permit is cancelled is appointed by another direct seller or is re-appointed by the direct seller with whom he previously held a permit, a new application shall be made to the Registrar for a permit. R.S., c. 129, s. 19; 1998, c. 8, ss. 34, 41; 1999, c. 8, s. 9.

Direct sales contract

20 (1) A direct sales contract shall be in writing where required by this Act or the regulations.

(2) A copy of the direct sales contract shall be supplied to the purchaser at the time the contract is made.

(3) A written direct sales contract shall include

(a) a statement of cancellation rights that conforms with the requirements in the regulations; and

(b) the information required by the regulations.

(4) Where a direct sales contract is not required to be in writing, the direct seller shall notify the purchaser of cancellation rights in a form and manner prescribed by the regulations.

(5) Except as provided in the regulations, a direct seller shall not give or offer to give directly or indirectly any gift, premium, prize or other benefit of any kind to a purchaser or prospective purchaser for assistance in furthering the sale to another person of any goods or services if that gift, premium, prize or other benefit is contingent on a sale being made to the other person. 1999, c. 8, s. 7.

Cancellation of contract

21 (1) A direct sales contract is cancelled if

(a) the purchaser serves a written notice of cancellation on the direct seller within ten days after the day on which the purchaser receives a copy of the direct sales contract or, where a contract is not required, a notice of cancellation rights; or

(b) the purchaser cancels the contract by providing written notice to the direct seller within one year after the day on which the purchaser entered into the contract and

(i) the direct seller was not in compliance with the requirements for a permit contained in this Act or the regulations at the time the purchaser entered into the contract,

(ii) the goods or services to be supplied under the contract are not supplied to the purchaser within thirty days after the supply date specified in the contract,

(iii) where a written contract is required, the contract does not contain the information required pursuant to this Act or the regulations, or

(iv) where a written contract is not required, the notice of cancellation rights does not conform with the requirements of this Act or the regulations.

(2) A notice given pursuant to subsection (1) may be served on the direct seller in any manner that permits the purchaser to produce evidence that the purchaser cancelled the contract, including registered mail or personal delivery to the direct sellers' last known address.

(3) Where a method of sending or delivering the cancellation notice other than personal delivery is used, a notice of cancellation is deemed to be given when sent.

(4) Where a purchaser accepts delivery of goods or supply of services after the thirty-day period referred to in subclause (ii) of clause (b) of subsection (1) has expired, the purchaser is not entitled to cancel the contract pursuant to that subclause. 1999, c. 8, s. 7.

Extension or arrangement of credit

22 Where, in connection with a direct sales contract, credit is extended or arranged by a direct seller,

(a) the credit contract is conditional on the direct sales contract; and

(b) where the direct sales contract is cancelled pursuant to Section 21, the credit contract is cancelled. 1999, c. 8, s. 7.

Effect of cancellation of contract

23 (1) Where a direct sales contract is cancelled, the direct seller, within fifteen days of the cancellation, shall

(a) refund to the purchaser all money received under the contract; and

(b) return to the purchaser any trade-in or an amount equal to the value of the trade-in received under the contract.

(2) The value of the trade-in referred to in subsection (1) is the greater of

(a) the market value of the goods when taken in trade; and

(b) the price or value of the goods as set out in the direct sales contract.

(3) In a contract respecting goods, the purchaser, on receiving the refund, shall return the goods to the direct seller.

(4) Where a purchaser cannot return the goods to the direct seller in substantially the same condition as when the purchaser received the goods because of an act or fault for which the purchaser is responsible, the purchaser may not cancel the contract.

(5) A direct seller is entitled to recover reasonable compensation as prescribed in the regulations for goods that cannot be returned or for services already provided. 1999, c. 8, s. 7.

Copy of contract for buyer and no contingent benefits

24 (1) Immediately upon the execution of a direct sales contract, the direct seller or the salesperson shall deliver to the buyer a true copy of the contract.

(2) No direct seller or salesperson shall give or offer to give directly or indirectly any gift, premium, prize or other benefit of any kind whatsoever to a purchaser or prospective purchaser for services in furthering the sale to another person of any goods or services, if such gift, premium, prize or other benefit is contingent on a sale being made to such other person. R.S., c. 129, s. 24; 1999, c. 8, s. 9.

Application of Sections 20 to 22

25 Sections 20, 21 and 22, except clauses (a) and (c) of subsection (1) of Section 22, apply to all sales that are solicited, negotiated or entered into in any dwelling, motel or hotel or at any exhibition, trade or fair by a merchant who is not carrying on the business of direct selling and is not required to be issued a permit pursuant to this Act. R.S., c. 129, s. 25; 1998, c. 8, s. 36.

Forfeiture of bond

26 Any bond delivered under this Act shall be forfeited upon the demand of the Registrar where

(a) the person in respect of whose conduct the bond is conditioned or any representative, agent or salesperson of that person has been convicted of

(i) an offence under this Act or any regulation,

(ii) an offence involving fraud, theft or conspiracy to commit an offence involving fraud, theft or conspiracy under the Criminal Code (Canada);

(b) judgment in respect of a claim arising out of a direct sales contract has been given against the person in respect of whose conduct the bond is conditioned or against any representative, agent or salesperson of that person;

(c) the person in respect of whose conduct the bond is conditioned commits an act of bankruptcy, whether or not proceedings have been taken under the Bankruptcy Act (Canada); or

(d) a decision has been rendered by the Registrar in writing stating in effect that after consideration and investigation of a complaint, he is satisfied that the person in respect of whose conduct the bond is conditioned or any representative, agent or salesperson of that person

(i) has violated any provision of this Act or has failed to comply with any of the terms, conditions or restrictions to which his permit is subject or is in breach of contract, and

(ii) has departed from the Province or been out of the Province, remains out of the Province or departs from his normal place of abode or otherwise absents himself or in the case of a corporation, the name thereof has been struck off the register of companies,

and such conviction or judgment, order or decision has become final by reason of lapse of time or having been confirmed by the highest court to which any appeal may be taken. R.S., c. 129, s. 26; 1998, c. 8, s. 41; 1999, c. 8, s. 9.

Effect of bond

27 (1) Notwithstanding any other provision of this Act, the total liability of the insurer under a bond shall not at any time exceed the face value of the bond.

(2) Where a bond secured by the deposit of collateral security with the Registrar is forfeited under this Act, the Registrar may sell the collateral security at the current market price.

(3) The Registrar may assign any bond forfeited under the provisions of this Act or may pay over any money recovered thereunder or recovered from the sale of any collateral security to any person or to the Accountant General of the Supreme Court in trust for such persons as may become entitled thereto in respect of direct sales contracts with the person named in the bond or any representative, agent or salesperson of that person, judgment creditors of the person so bonded or to any trustee, custodian, interim receiver, receiver or liquidator of such judgment creditors as the case may be, such assignment or payment over to be in accordance with and upon conditions set forth in regulations or in any special order of the Governor in Council. R.S., c. 129, s. 27; 1999, c. 8, s. 9.

Investigations by Registrar

28 The Registrar or any person authorized by him in writing may investigate and inquire into any matter the investigation of which he deems expedient for the due administration of this Act. R.S., c. 129, s. 28.

Powers on investigation

29 The person making an investigation may at all reasonable times demand the production of and inspect all or any of the books, documents, papers, correspondence and records of the person in respect of whom the investigation is being made and any person who has the custody, possession or control of any such books, documents, papers, correspondence or records shall produce them and permit the inspection thereof by the person making the investigation. R.S., c. 129, s. 29.

Contract unenforceable

30 (1) No action shall be brought by a direct seller against a purchaser for the enforcement of a direct sales contract unless the direct seller and salesperson were issued a permit under this Act at the time that the purchaser entered into the contract.

(2) Subsection (1) does not apply in a case where the direct seller and the salesperson are are not required to be issued a permit pursuant to this Act. R.S., c. 129, s. 30; 1998, c. 8, s. 37; 1999, c. 8, s. 9.

Agent to have permit

31 No person shall engage, employ, appoint, authorize or permit any other person to do any of the things in respect of which a permit is required under this Act unless such other person holds a permit under this Act. R.S., c. 129, s. 31; 1998, c. 8, s. 41.

Holding out and right to inspect

32 (1) Subject to subsection (2), no person shall in any manner hold himself out as being bonded or issued a permit under this Act.

(2) A person issued a permit under this Act shall produce his permit for inspection when requested to do so by any person whom he has solicited. R.S., c. 129, s. 32; 1998, c. 8, ss. 38, 41.

Certificate prima facie proof

33 A certificate under the hand of the Registrar stating that on a specified day

(a) a direct seller, salesperson or any other person named in the certificate was or was not issued a permit under this Act;

(b) a permit was issued to a direct seller or salesperson; or

(c) the permit of a direct seller or salesperson was suspended, cancelled or reinstated,

is admissible in evidence as prima facie proof of the facts stated in the certificate. R.S., c. 129, s. 33; 1998, c. 8, ss. 39, 41; 1999, c. 8, s. 9.

Certain agreements void

34 Every agreement or bargain, verbal or written, express or implied, in which any of the provisions of this Act or the regulations shall not apply or that any benefit or remedy provided by those provisions shall not be available, or which in any way limits or abrogates or in effect limits, modifies or abrogates any such benefit or remedy, is null, void and of no effect, and moneys paid under or by reason of any such agreement or bargain are recoverable in any court of competent jurisdiction. R.S., c. 129, s. 34.

Regulations

35 The Governor in Council may make regulations

(a) prescribing requirements respecting applicants for permits;

(b) prescribing the terms, conditions and restrictions of permits;

(c) providing for and requiring direct sellers and salespersons or representatives of direct sellers to be issued a permit and prescribing fees for permits;

(d) relating to the suspension or cancellation of permits;

(e) relating to the bonding of direct sellers and salespersons of direct sellers and prescribing the form of the bonds;

(f) prescribing the form of contracts by direct sellers;

(g) exempting any class of purchaser, seller or direct seller from any or all of the provisions of this Act;

(h) exempting any class of transaction by a direct seller from all or any of the provisions of this Act;

(ha) prescribing categories of direct sellers;

(hb) respecting the types of contracts or the categories of direct sales for which a written contract is required, including setting the minimum value at which a written contract may be required;

(hc) respecting the form and content of identification cards direct sellers are to provide to salespersons and the circumstances in which an identification card is required;

(hd) respecting the content of direct sales contracts or any category of direct sales contracts;

(he) respecting the form and content of a statement of cancellation rights;

(hf) respecting codes of conduct for a direct seller;

(hg) exempting a salesperson or a class of salespersons from the requirement to hold a permit;

(hh) respecting reasonable compensation for the purpose of Section 23;

(hi) defining any word or expression used but not defined in this Act;

(hj) prescribing any other matter or thing that is required or authorized by this Act to be prescribed by regulation;

(i) respecting any other matter necessary or advisable to carry out the intention and purposes of this Act. R.S., c. 129, s. 35; 1998, c. 8, s. 40; 1999, c. 8, ss. 8, 9.

Penalty

36 A person who violates or fails to comply with any provision of this Act or the regulations is liable on summary conviction to a penalty of not less than one hundred dollars and not more than one thousand dollars. R.S., c. 129, s. 36.

Prima facie proof

37 Where in a prosecution under this Act it is alleged that the accused carried on the business of direct selling without being the holder of a subsisting permit under this Act, evidence of one transaction is prima facie evidence that the accused carried on such business. R.S., c. 129, s. 37; 1998, c. 8, s. 41.

Limitation period for prosecution

38 No prosecution for an offence under this Act or the regulations shall be commenced after two years from the date of the offence. R.S., c. 129, s. 38.

Appeals to courts

39 (1) A person who is dissatisfied with a decision of the Registrar under this Act may, within thirty days from the date of the decision, appeal to a judge of the county court who may, upon hearing the appeal which shall be heard in accordance with the Summary Proceedings Act, by order do any one or more of the following things:

(a) dismiss the appeal;

(b) allow the appeal;

(c) allow the appeal subject to terms and conditions;

(d) vary the decision appealed against;

(e) refer the matter back to the Registrar for further consideration and decision;

(f) award costs of the appeal;

(g) make such other order as to him seems just.

(2) The appeal shall be by notice of appeal and a copy thereof shall be served upon the Registrar not less than ten days before the day on which the motion is returnable.

(3) On the hearing of an appeal any evidence taken before the Registrar and certified by him may, with leave of the judge hearing the appeal, be read and shall have the like force and effect as if the witness were there examined and any party affected by the appeal may call witnesses and adduce evidence whether or not the witnesses were called or the evidence adduced at the hearing before the Registrar either as to the credibility of witnesses or as to any other fact material to the inquiry.

(4) An appeal shall lie to the Appeal Division of the Supreme Court from a decision of the county court upon any question of law but such appeal can only be taken by leave of a judge of the Appeal Division given upon a petition presented to him within thirty days after the rendering of the decision and upon such terms as the said judge may determine; notice of such petition shall be given to the Registrar at least two clear days before the presentation of such petition.

(5) Where leave to appeal has been granted the appeal shall be brought by notice served on the Registrar within ten days after the leave to appeal has been granted, and the notice shall contain the names of the parties and the date of the decision appealed from and such other particulars as the judge granting leave to appeal may require. R.S., c. 129, s. 39.

Regulations Act

40 The exercise by the Governor in Council of the authority set forth in Section 35 shall be regulations within the meaning of the Regulations Act. R.S., c. 129, s. 40.