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An Act to Amend the Pre-arranged Funeral Services Act

Legislature :
55
Session :
3
Bill No. :
48
Member :
Hon. Fitch
First Reading :
2006-4-25
Second Reading :
2006-4-26
Committee of the Whole :
Amended :
Third Reading :
2006-6-8
Royal Assent :
2006-6-22
Download PDF :
Bill 48

Text of Bill :
Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:



1                           Section 1 of the Pre-arranged Funeral Services Act, chapter P-14 of the Revised Statutes, 1973, is amended



(a)               by repealing the definition "licensee";



(b)               in the French version in the definition « services de pompes funèbres »



(i)         by striking out "urnes" and substituting "vases";



(ii)       by striking out the semicolon at the end of the definition and substituting a period;



(c)               in the English version in the definition "trust company" by striking out the period at the end of the definition and substituting a semicolon;



(d)               by adding the following definitions in alphabetical order:



"former licensee" means



(a)               a person who was a licensed funeral provider but who no longer holds a funeral provider's licence, or



(b)               a person who held a licence under this Act before the commencement of this paragraph, but who does not hold a funeral provider's licence;



"funeral provider's licence" means a funeral provider's licence issued under section 3 that has not lapsed or been surrendered, suspended or cancelled;



"legal representative" means a person who stands in place of and represents another person including, but not limited to, a trustee, an executor, an administrator, an agent, a committee or an attorney;



"licensed funeral provider" means a person who is the holder of a funeral provider's licence;



"licensed manager" means a person who is the holder of a manager's licence;



"manager's licence" means a manager's licence issued under section 3.01 that has not lapsed or been surrendered or suspended or cancelled;



"purchaser" means



(a)               a person who enters into a pre-arranged funeral plan with a licensed funeral provider under this Act, or



(b)               a person who, before the commencement of this paragraph, entered into a pre-arranged funeral plan with a person who held a licence under this Act;



"working day" means any day except a Saturday or a Sunday or other holiday.



2                           Section 2 of the Act is repealed and the following is substituted:



2                           No person other than a licensed funeral provider shall



(a)               undertake to provide or make provision for the funeral services of another person under a pre-arranged funeral plan, or



(b)               solicit another person to enter into a pre-arranged funeral plan.



3                           Section 2.1 of the Act is repealed and the following is substituted:



2.1                      Notwithstanding section 2, a person who is not a licensed funeral provider may solicit persons to enter into a pre-arranged funeral plan with a licensed funeral provider.



4                           Section 3 of the Act is amended



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



3(1)                   A person who wishes to give funeral services for remuneration, reward or compensation under pre-arranged funeral plans may apply to the Minister for a funeral provider's licence in accordance with the regulations.



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



3(2)                   Where the Minister is satisfied that an applicant for a funeral provider's licence is a reputable person and that the necessary agreements have been made with a financial institution, as required by this Act, for the deposit of and the reporting with respect to any money to be received under the pre-arranged funeral plans proposed to be entered into by the applicant, the Minister may, subject to subsections (2.1) and (2.2), issue a funeral provider's licence to the applicant.



(c)               by repealing subsection (2.1) and substituting the following:



3(2.1)             The Minister shall not issue a funeral provider's licence under subsection (2) unless the applicant is licensed as a Funeral Provider under the Embalmers, Funeral Directors and Funeral Providers Act.



(d)               in subsection (2.2) by striking out "licence" and substituting "funeral provider's licence";



(e)               in subsection (3) by striking out "licence" and substituting "funeral provider's licence";



(f)                by repealing subsection (4).



5                           The Act is amended by adding after section 3 the following:



3.01(1)          Subject to subsection (7), a licensed funeral provider shall, for each location at which the licensed funeral provider carries on business in the Province, employ or contract with a licensed manager to act on behalf of the licensed funeral provider at the location.



3.01(2)          A person may apply to the Minister for a manager's licence in accordance with the regulations.



3.01(3)          Where the Minister is satisfied that an applicant for a funeral provider's licence is a reputable person, the Minister may, subject to subsection (4), issue a manager's licence to the applicant.



3.01(4)          The Minister shall not issue a manager's licence under subsection (3) unless the applicant is licensed as a Funeral Director under the Embalmers, Funeral Directors and Funeral Providers Act.



3.01(5)          A manager's licence may be made subject to such terms and conditions as may be established by or in accordance with the regulations and remains valid for the period of time prescribed by regulation.



3.01(6)          For the location at which a licensed manager acts on behalf of a licensed funeral provider under subsection (1), the licensed manager



(a)               shall represent the licensed funeral provider in all matters relating to its licensed activities under this Act,



(b)               shall be responsible for the operation of the business of providing funeral services under pre-arranged funeral plans,



(c)                shall ensure that the licensed funeral provider maintains books, records, accounts and documents in accordance with this Act and the regulations, and



(d)               shall ensure that a person licensed as a Funeral Director under the Embalmers, Funeral Directors and Funeral Providers Act and provided with the authority to do so by the licensed funeral provider, enters into pre-arranged funeral plans on behalf of the licensed funeral provider.



3.01(7)          A licensed funeral provider who is an individual may be the licensed manager for one location at which the licensed funeral provider carries on business in the Province.



3.02                  A funeral provider's licence or a manager's licence issued under this Act is not transferable.



3.03(1)          In this section



"licensed funeral director" means a person licensed as a Funeral Director under the Embalmers, Funeral Directors and Funeral Providers Act.



3.03(2)          Subject to subsection (3), a licensed funeral provider, with respect to every pre-arranged funeral plan entered into after the commencement of this section, shall ensure that both the purchaser and a licensed funeral director who has been provided by the licensed funeral provider with the authority to enter into pre-arranged funeral plans on behalf of the licensed funeral provider sign a Standard Form of Pre-arranged Funeral Plan prescribed by regulation.



3.03(3)          A purchaser and a licensed funeral director who enters into a pre-arranged funeral plan or an agreement amending a pre-arranged funeral plan on behalf of a licensed funeral provider may agree to any addition to the Standard Form of Pre-arranged Funeral Plan that does not alter any right or duty as stated in this Act, the regulations or the Standard Form of Pre-arranged Funeral Plan.



3.03(4)          Notwithstanding anything in this section, a pre-arranged funeral plan entered into by a purchaser and a licensed funeral provider is not invalid by reason only that it is not in the form of a Standard Form of Pre-arranged Funeral Plan.



6                           Section 3.1 of the Act is repealed and the following is substituted:



3.1                      The signature of the Minister on a funeral provider's licence or manager's licensed issued under this Act may be printed, stamped or otherwise mechanically reproduced on the licence.



7                           Section 4 of the Act is amended



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



4(1)                   Subject to subsection (1.1), a licensed funeral provider holds in trust any money paid under a pre-arranged funeral plan held by the licensed funeral provider, including any money that may be payable as penalty under subsection (4), for the purposes for which it has been paid until



(a)               the licensed funeral provider becomes entitled to the money as a result of having provided, in accordance with the plan, the funeral services or any portion of the funeral services that have been contracted for under the plan, or



(b)               in the case of the termination, cancellation or discontinuance of the plan, the money, less any penalty payable under subsection (4), is refunded to the purchaser or paid to the purchaser's legal representative.



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



4(1.1)             Subject to subsection 12(4), subsection (1) applies with respect to a pre-arranged funeral plan entered into before the commencement of this subsection, except that the licensed funeral provider shall retain in trust, unless the plan is terminated, cancelled or discontinued, at least ten per cent of the total amount paid under the plan until all the funeral services contracted for under the plan have been provided.



(c)               in subsection (3) by striking out "the person making the payments under the plan or of his personal representative" and substituting "the purchaser or of the purchaser's legal representative";



(d)               in subsection (4) by striking out "at the request of the person making the payments under the plan or of his personal representative, a pre-arranged funeral plan is terminated, cancelled or discontinued after the period of time referred to in subsection (3), the person making the request shall, if the plan so provides, pay to the licensee" and substituting "at the request of the purchaser or of the purchaser's legal representative, a pre-arranged funeral plan is terminated, cancelled or discontinued after the period of time referred to in subsection (3), the person making the request shall, if the plan so provides, pay to the licensed funeral provider";



(e)               in subsection (5) by striking out "licensee" and substituting "licensed funeral provider";



(f)                in subsection (8) by striking out "licensee" and substituting "person".



8                           Section 4.1 of the Act is amended



(a)               in paragraph (a) by striking out "the person making payments under the plan or to that person's personal representative" and substituting "the purchaser or the purchaser's legal representative";



(b)               in paragraph (b) by striking out "licensee's address" and substituting "licensed funeral provider's address".



9                           Section 5 of the Act is repealed and the following is substituted:



5                           Money held in trust by a licensed funeral provider under a pre-arranged funeral plan shall, within a period of time prescribed by regulation, be paid to a financial institution to be deposited in trust in an account with the financial institution by agreement with the licensed funeral provider.



10                        The Act is amended by adding after section 5 the following:



5.01                  Within fifteen working days after having paid money to a financial institution under section 5 for deposit in trust in an account with the financial institution, a licensed funeral provider shall obtain from the financial institution proof that the deposit was made and provide a copy of the proof of deposit to the purchaser.



11                        Section 5.1 of the Act is repealed and the following is substituted:



5.1                      A licensed funeral provider who holds money in trust under a pre-arranged funeral plan shall ensure that the money for each plan is deposited with a financial institution in such a manner so as to ensure that the deposit is insured under the Canada Deposit Insurance Act (Canada) or the Credit Unions Act and designated as a trust account both in the books of the licensed funeral provider and in the records of the institution.



12                        Section 6 of the Act is amended



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



6(1)                   Subject to subsection (1.01), a licensed funeral provider shall not withdraw any money paid to a financial institution under section 5 unless



(a)               the funeral provider is entitled to the money as a result of having provided, in accordance with the pre-arranged funeral plan, the funeral services or any portion of the funeral services that have been contracted for under the plan, or



(b)               the money, less any penalty payable under subsection 4(4), is withdrawn to refund it to the purchaser or pay it to the purchaser's legal representative following the termination, cancellation or discontinuance of the plan.



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



6(1.01)          Subject to subsection 12(4), subsection (1) applies with respect to a pre-arranged funeral plan entered into before the commencement of this subsection, except that the licensed funeral provider shall retain in trust, unless the plan is terminated, cancelled or discontinued, at least ten per cent of the total amount paid under the plan until all the funeral services contracted for under the plan have been provided.



(c)               by repealing subsection (1.1) and substituting the following:



6(1.1)             Where following termination, cancellation or discontinuance of a pre-arranged funeral plan a licensed funeral provider is not available to withdraw or refuses to withdraw money which the licensed funeral provider is required to refund to the purchaser or to pay to the purchaser's legal representative, the financial institution may, upon the written direction of the Minister, pay the money out to the purchaser or the purchaser's legal representative from the account maintained for the licensed funeral provider.



(d)               by adding after subsection (1.1) the following:



6(1.2)             Where money is held in trust under a pre-arranged funeral plan by a person whose funeral provider's licence is suspended or cancelled, the Minister may order a financial institution to whom money was paid under section 5 by the licensed funeral provider to refrain from paying out all or any part of the money for the period of the suspension or cancellation, and the financial institution shall comply with the order.



(e)               in subsection (4) by striking out "a licensee and a person who pays money under a pre-arranged funeral plan to provide for the payment of the interest or any part of it to that person, all interest earned on money paid under a pre-arranged funeral plan shall be held in trust by the licensee" and substituting "a licensed funeral provider and a purchaser to provide for the payment of the interest or any part of it to the purchaser, all interest earned on money paid under a pre-arranged funeral plan shall be held in trust by the licensed funeral provider".



13                        Section 6.2 of the Act is amended



(a)               in subsection (1) by striking out "A licensee or former licensee" and substituting "A licensed funeral provider";



(b)               by repealing subsection (2);



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



6.2(3)             Subject to subsections (4) and (5), a levy withdrawn by a person under subsection (2), as it existed immediately before the commencement of this subsection, shall be deemed to have been paid out of the proceeds of the pre-arranged funeral plan to which the person is entitled upon performance of the funeral services contracted for under the plan.



(d)               by repealing subsection (4) and substituting the following:



6.2(4)             Where a pre-arranged funeral plan is terminated, cancelled or discontinued, a levy withdrawn by a person under subsection (2), as it existed immediately before the commencement of this subsection, shall be deemed to have been paid out of the penalty payable under the plan, if one is provided for, or out of money the person is authorized to retain in accordance with subsection 4(8), and the person shall credit the amount of the levy withdrawn as payment towards any penalty payable under the plan or as payment towards any money the person is authorized to retain under subsection 4(8).



(e)               by repealing subsection (5) and substituting the following:



6.2(5)             Where a pre-arranged funeral plan is terminated, cancelled or discontinued and no penalty is provided for in the plan or the penalty is less than the amount of the levy withdrawn or the amount authorized to be retained under subsection 4(8), the person who withdrew the money under subsection (2), as it existed immediately before the commencement of this subsection, shall reimburse



(a)               the full amount of the levy, where no penalty has been provided for or no amount is authorized to be retained under subsection 4(8), or



(b)               the difference between the amount of the levy and the penalty or the amount authorized to be retained under subsection 4(8), where the levy is greater than the penalty or the amount authorized to be retained under subsection 4(8).



(f)                in subsection (6) by striking out "a licensee or former licensee" and substituting "a person";



(g)               by repealing subsection (7).



14                        Section 7 of the Act is amended



(a)               in subsection (1) by striking out "licensee" wherever it appears and substituting "licensed funeral provider";



(b)               in subsection (2)



(i)         in paragraph (a) by striking out "licensees" and substituting "licensed funeral providers";



(ii)       in paragraph (b) by striking out "licensee" and substituting "licensed funeral provider";



(iii)    in paragraph (c) by striking out "licensee" and substituting "licensed funeral provider".



15                        Section 7.1 of the Act is amended



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



7.1(1)             A licensed funeral provider shall forward for inspection to the Minister, at the request of the Minister, all advertising material, sales literature, catalogues, price lists, trade notices, brochures, folders, posters, displays, photographs, films and other material used or to be used by the licensed funeral provider, or by anyone acting on behalf of the licensed funeral provider, in relation to promoting pre-arranged funeral plans or to soliciting persons to enter into pre-arranged funeral plans.



(b)               in subsection (2) by striking out "licensee" and substituting "licensed funeral provider";



(c)               in subsection (3) by striking out "the licence of the licensee is subject" substituting "the funeral provider's licence is subject".



16                        Section 7.2 of the Act is repealed and the following is substituted:



7.2(1)             The Minister may during normal business hours, for the purposes of this Act and the regulations and for the purpose of ensuring compliance with this Act and the regulations, enter upon the premises of a licensed funeral provider where any business is carried on or anything is done in connection with pre-arranged funeral plans, and may inspect all books, records, accounts and documents that relate to or may relate to pre-arranged funeral plans.



7.2(2)             During an inspection under subsection (1), the licensed funeral provider and any employee or agent of the licensed funeral provider shall produce for examination, audit or copying all books, records, accounts and documents that relate or that may relate to pre-arranged funeral plans.



7.2(3)             In carrying out an inspection under subsection (1), the Minister may



(a)               use a data processing system at the premises where the books, records, accounts and documents are kept,



(b)               reproduce any book, record, account or document, and



(c)                use any copying equipment at the premises where the books, records, accounts or documents are kept to make copies of any book, record, account or document.



7.2(4)             The Minister shall not enter a private dwelling under subsection (1) unless the Minister has the consent of the occupier or has obtained an entry warrant under the Entry Warrants Act.



7.2(5)             Before or after attempting to enter or to have access to any premises, the Minister may apply for an entry warrant under the Entry Warrants Act.



7.2(6)             If the Minister removes books, records, accounts or documents during an inspection under subsection (1) to make a copy or extract of them or any part of them, the Minister shall give a receipt to the occupier for the books, records, accounts or documents and return them as soon as possible after the making of copies or extracts.



7.2(7)             A licensed funeral provider, a licensed manager and any employee or agent of the licensed funeral provider shall give all reasonable assistance to the Minister when the Minister is carrying out an inspection under subsection (1).



7.2(8)             No person shall obstruct or interfere with the Minister when the Minister is carrying out or attempting to carry out an inspection under subsection (1), or withhold, destroy, conceal, alter or refuse to furnish any information or thing reasonably required by the Minister for the purposes of the inspection.



7.2(9)             A refusal of consent to enter a private dwelling is not and shall not be considered to be interfering with or obstructing within the meaning of subsection (8), except where an entry warrant has been obtained.



17                        Section 8 of the Act is repealed and the following is substituted:



8(1)                   A licensed funeral provider may, with the consent of the purchaser or the purchaser's legal representative or at the request of the purchaser or the purchaser's legal representative, assign the pre-arranged funeral plan to another licensed funeral provider with notice in writing of the assignment to the financial institution maintaining the account on behalf of the licensed funeral provider.



8(2)                   Where an assignment of a pre-arranged funeral plan is made to another licensed funeral provider, the financial institution maintaining the account on behalf of the licensed funeral provider shall make all necessary changes in the records and funds in order to make the assignment complete, and if the account of the assignee is maintained elsewhere than with that financial institution, money held under the assigned pre-arranged funeral plan may be transferred to the account maintained on behalf of the assignee, upon the payment by the assignee of the charges and fees of the financial institution.



8(3)                   A licensed funeral provider who makes an assignment of a pre-arranged funeral plan to another licensed funeral provider on the request of the purchaser may charge the fee prescribed by regulation for making the assignment.



18                        Subsection 10(1) of the Act is amended



(a)               in paragraph (a) by striking out "licensee" and substituting "licensed funeral provider";



(b)               in paragraph (b) by striking out "licensee" and substituting "licensed funeral provider or licensed manager".



19                        Section 11 of the Act is amended



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



11(1)               The Minister may, after notice to the licensed funeral provider and a hearing, suspend or cancel a funeral provider's licence issued under this Act if the Minister is satisfied that the licensed funeral provider



(a)               has violated or failed to comply with any provision of this Act, has been charged with or convicted of an offence under this Act or has violated any term or condition to which the licence is subject,



(b)               has made a material misstatement in the application for the licence or in any information or material submitted by the licensed funeral provider to the Minister;



(c)                has been charged with or convicted of misrepresentation, theft or fraud in relation the business of providing funeral services under pre-arranged funeral plans or in relation to any other business, or



(d)               has demonstrated incompetence or untrustworthiness in carrying on the business of providing funeral services under pre-arranged funeral plans.



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



11(1.1)          The Minister may, after notice to the licensed manager and a hearing, suspend or cancel a manager's licence issued under this Act if the Minister is satisfied that the licensed manager



(a)               has violated or failed to comply with any provision of this Act, has been charged with or convicted of an offence under this Act or has violated any term or condition to which the licence is subject,



(b)               has made a material misstatement in the application for the licence or in any information or material submitted by the licensed manager to the Minister,



(c)                has been charged with or convicted of misrepresentation, theft or fraud in relation to the business of providing funeral services under pre-arranged funeral plans or in relation to any other business, or



(d)               has demonstrated incompetence or untrustworthiness in relation to the business of providing funeral services under pre-arranged funeral plans.



11(1.2)          Subject to subsection (1.3), the Minister may suspend a funeral provider's licence or a manager's licence issued under this Act without a hearing for a period not exceeding fifteen days if the Minister is satisfied that the licensed funeral provider or licensed manager, as the case may be, has violated or failed to comply with any provision of this Act.



11(1.3)          If a hearing is commenced under subsection (1) or (1.1), as the case may be, within the fifteen-day period referred to in subsection (1.2) the Minister may extend the suspension of the funeral provider's licence or manager's licence until the hearing is concluded.



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



11(2)               A person whose licence is cancelled or suspended under subsection (1) or (1.1) may appeal the cancellation or suspension to a judge of The Court of Queen's Bench of New Brunswick within thirty days after the person is notified of the cancellation or suspension.



(d)               by repealing subsection (4.1);



(e)               in subsection (4.2) by striking out "a licence issued under this Act if the Minister is satisfied that the licensee is in arrears" and substituting "a funeral provider's licence issued under this Act if the Minister is satisfied that the licensed funeral provider is in arrears";



(f)                by repealing subsection (5) and substituting the following:



11(5)               When a funeral provider's licence is cancelled the Minister shall assign all pre-arranged funeral plans entered into by the person whose funeral provider's licence is cancelled to one or more other licensed funeral providers, with notice to the persons affected by the assignment.



(g)               by adding after subsection (5) the following:



11(5.01)       Where a funeral provider's licence or manager's licence is cancelled, the Minister shall publish notice of the cancellation once in one or more newspapers having general circulation in the Province.



(h)               by repealing subsection (5.1) and substituting the following:



11(5.1)          When a funeral provider's licence is suspended, has lapsed or has been surrendered or where a licensed funeral provider is unable or unwilling to perform the contracted service under one or more pre-arranged funeral plans, the Minister may assign any or all pre-arranged funeral plans entered into by the person whose funeral provider's licence is suspended, lapsed or surrendered or by the licensed funeral provider who is unable or unwilling to perform the contracted service, to one or more other licensed funeral providers, with notice to the persons affected by the assignment.



(i)                in subsection (6) by striking out "person or licensee" and substituting "person or licensed funeral provider".



20                        Section 12 of the Act is amended



(a)               by repealing subsection (2);



(b)               by repealing subsection (3).



21                        Section 13 of the Act is amended by striking out "the person depositing the same under the plan or his personal representative" and substituting "the purchaser or the purchaser's legal representative".



22                        Section 14 of the Act is amended



(a)               by adding after paragraph (b) the following:



(b.1)          prescribing the Standard Form of Pre-arranged Funeral Plan;



(b)               in paragraph (d) by striking out "issuing of licences" and substituting "issuing of a funeral provider's licence or manager's licence";



(c)                      by adding after paragraph (e) the following:



(e.1)          respecting books, records, accounts or documents to be maintained by licensed funeral providers, including, without limiting the generality of the foregoing,



(i)         the contents of the books, records, accounts or documents to be maintained,



(ii)       the form in which the books, records, accounts or documents are to be maintained,



(iii)    the place or places where the books, records, accounts or documents are to be maintained, and



(iv)      the length of time for which the books, records, accounts or documents are to be maintained;



(d)               in paragraph (g) by striking out "licence" and substituting "funeral provider's licence or manager's licence";



(e)               in paragraph (h) by striking out "licensee's address" and substituting "licensed funeral provider's address".



TRANSITIONAL



23(1)               Where a pre-arranged funeral plan was entered into before the commencement of this section, if the person agreeing for remuneration, reward or compensation to provide or to make provision for the funeral services required by the plan is unable to qualify for a funeral provider's licence under the Pre-arranged Funeral Services Act within three months after the commencement of this section, the person shall assign the pre-arranged funeral plan to a licensed funeral provider.



23(2)               Where a pre-arranged funeral plan required to be assigned under subsection (1) is not assigned within the time referred to in that subsection, the person agreeing to provide or make provision for the funeral services under the plan commits an offence punishable under Part II of the Provincial Offences Procedure Act as a category F offence.



COMMENCEMENT



24                        This Act or any provision of it comes into force on a day or days to be fixed by proclamation.



EXPLANATORY NOTES



Section 1



(a)               The existing definition is as follows:



"licensee" means a person licensed under this Act to provide funeral services under a pre-arranged funeral plan;



(b)(i)         The English and French versions are made consistent.



(b)(ii)       This amendment is consequential on the amendment made in paragraph 1(d) of this amending Act.



(c)                This amendment is consequential on the amendment made in paragraph 1(d) of this amending Act.



(d)               New definitions.



Section 2



The existing provision is as follows:



2                           Unless he is licensed under this Act to do so, no person shall



(a)               undertake to provide or make provision for another's funeral services under a pre-arranged funeral plan, or



(b)               solicit another person to enter into a pre-arranged funeral plan with him or with any person.



Section 3



The existing provision is as follows:



2.1                      Notwithstanding section 2, a person may without a licence under this Act solicit persons to enter into a pre-arranged funeral plan with a licensee.



Section 4



(a)               The existing provision is as follows:



3(1)                   A person desiring to give funeral services for remuneration, reward or compensation under pre-arranged funeral plans may apply to the Minister for a licence under this Act to enter into pre-arranged funeral plans in accordance with the regulations.



(b)               The existing provision is as follows:



3(2)                   Where the Minister is satisfied that an applicant for a licence is a reputable person and that the necessary agreements have been made with a financial institution, as required by this Act, for the deposit of and the reporting with respect to any money to be received under the pre-arranged funeral plans proposed to be entered into by the applicant, the Minister may issue a licence to the applicant.



(c)                The existing provision is as follows:



3(2.1)             The Minister shall not issue a licence under subsection (2) unless the applicant holds a licence to act as a funeral director under the Embalmers, Funeral Directors and Funeral Providers Act.



(d)               The existing provision is as follows:



3(2.2)             The Minister shall not issue a licence under subsection (2) if the applicant is in arrears in respect of payment of levies to the Board for deposit to the credit of the Compensation Fund.



(e)                The existing provision is as follows:



3(3)                   A licence may be made subject to such terms and conditions as may be established by or in accordance with the regulations and remains valid for the period of time prescribed by regulation.



(f)                The existing provision is as follows:



3(4)                   Notwithstanding subsection (3), a licence issued under this Act at a time when such licences remained valid during the pleasure of the Lieutenant-Governor in Council and which is valid immediately before the commencement of subsection (3) continues, subject to the provisions of this Act other than subsection (3), to be valid only until the date of the first anniversary of the issuance of the licence following the commencement of subsection (3).



Section 5



New provisions.



Section 6



The existing provision is as follows:



3.1                      The signature of the Minister on a licence issued under this Act may be printed, stamped or otherwise mechanically reproduced on the licence.



Section 7



(a)               The existing provisions is as follows:



4(1)                   A licensee who enters into a pre-arranged funeral plan holds in trust all money paid under the plan, including any money that may be payable as penalty under subsection (4), for the purposes for which it has been paid until



(a)               the funeral services mentioned in the plan have been provided in accordance with the plan, or



(b)               the money or any unused balance thereof has been refunded to the person who made the payment or payments, or paid to his personal representative.



(b)               New provision.



(c)                The existing provision is as follows:



4(3)                   Where, at the request of the person making the payments under the plan or of his personal representative, a pre-arranged funeral plan is terminated, cancelled or discontinued within the period of time prescribed by regulation, no penalty or charge is payable, notwithstanding any provision in a contract or agreement to the contrary, with respect to the termination, cancellation or discontinuance.



(d)               The existing provision is as follows:



4(4)                   Where, at the request of the person making the payments under the plan or of his personal representative, a pre-arranged funeral plan is terminated, cancelled or discontinued after the period of time referred to in subsection (3), the person making the request shall, if the plan so provides, pay to the licensee a penalty, not exceeding the amount prescribed by regulation.



(e)                The existing provision is as follows:



4(5)                   Where a penalty is payable under subsection (4), the amount of the penalty may be deducted by the licensee from the money held in trust with respect to the plan that is being terminated, cancelled or discontinued.



(f)                The existing provision is as follows:



4(8)                   Any money retained by a licensee in accordance with subsection 4(2) before the commencement of this subsection shall be dealt with in accordance with the provisions of this Act as they existed at the time the pre-arranged funeral plan authorizing the retention was entered into.



Section 8



(a) and (b)            The existing provision is as follows:



4.1                      Every pre-arranged funeral plan entered into after the commencement of this section shall contain in accordance with the regulations



(a)               a notice to the person making payments under the plan or to that person's personal representative of the right to terminate, cancel or discontinue the plan, and



(b)               the licensee's address to which correspondence may be sent.



Section 9



The existing provision is as follows:



5                           Money held in trust by a licensee under a prearranged funeral plan shall, within a period of time prescribed by regulation, be paid to a financial institution to be deposited in trust in an account with the financial institution by agreement with the licensee.



Section 10



New provision.



Section 11



The existing provision is as follows:



5.1                      A licensee who holds money in trust under a pre-arranged funeral plan shall ensure that the money for each plan is deposited with a financial institution in such a manner so as to ensure that the deposit is insured under the Canada Deposit Insurance Act (Canada) or the Credit Unions Act and designated as a trust account both in the books of the licensee and in the records of the institution.



Section 12



(a)               The existing provision is as follows:



6(1)                   No licensee shall withdraw money paid to a financial institution under section 5, in whole or in part, unless



(a)               the funeral services contracted for under the pre-arranged funeral plan have been provided by the licensee, or



(b)               the person who made the payment or the person's personal representative has requested the licensee, in writing, to make the withdrawal.



(b)               New provision.



(c)                The existing provision is as follows:



6(1.1)             Where a licensee is not available or refuses to withdraw the money as requested by the person who made the payment or the person's personal representative, the financial institution may pay the money out from the account to the person who made the payment or the person's personal representative upon the written direction of the Minister.



(d)               New provision.



(e)                The existing provision is as follows:



6(4)                   Subject to any agreement between a licensee and a person who pays money under a pre-arranged funeral plan to provide for the payment of the interest or any part of it to that person, all interest earned on money paid under a pre-arranged funeral plan shall be held in trust by the licensee and shall be deposited, invested, withdrawn, paid out or otherwise dealt with in the same manner and upon the same conditions as is money paid under a pre-arranged funeral plan.



Section 13



(a)               The existing provision is as follows:



6.2(1)             A licensee or former licensee who holds in trust money paid under a pre-arranged funeral plan shall pay to the Board, in accordance with this Act and the regulations and in respect of each plan, a levy in an amount and within the time prescribed by regulation for deposit to the credit of the Compensation Fund.



(b)               The existing provision is as follows:



6.2(2)             Notwithstanding any other provision of this Act or any provision in a pre-arranged funeral plan but subject to subsection (7), a licensee or former licensee shall, with respect to each plan under which the licensee or former licensee holds money in trust on the commencement of this subsection, withdraw the levy payable in respect of each plan from the money held in trust under the plan and pay the levy to the Board in an amount and within the time prescribed by regulation for deposit to the credit of the Compensation Fund.



(c)                The existing provision is as follows:



6.2(3)             Subject to subsections (4) and (5), a levy withdrawn by a licensee or former licensee under subsection (2) shall be deemed to have been paid out of the proceeds of the pre-arranged funeral plan to which the licensee or former licensee is entitled upon performance of the funeral services contracted for under the plan.



(d)               The existing provision is as follows:



6.2(4)             Where a pre-arranged funeral plan is terminated, cancelled or discontinued, a levy withdrawn by a licensee or former licensee under subsection (2) shall be deemed to have been paid out of the penalty payable under the plan, if one is provided for, or out of money the licensee or former licensee is authorized to retain in accordance with subsection 4(8), and the licensee or former licensee shall credit the amount of the levy withdrawn as payment towards any penalty payable under the plan or as payment towards any money the licensee or former licensee is authorized to retain under subsection 4(8).



(e)                The existing provision is as follows:



6.2(5)             Where a pre-arranged funeral plan is terminated, cancelled or discontinued and no penalty is provided for in the plan or the penalty is less than the amount of the levy withdrawn or the amount authorized to be retained under subsection 4(8), the licensee or former licensee shall reimburse



(a)               the full amount of the levy, where no penalty has been provided for or no amount is authorized to be retained under subsection 4(8), or



(b)               the difference between the amount of the levy and the penalty or the amount authorized to be retained under subsection 4(8), where the levy is greater than the penalty or the amount authorized to be retained under subsection 4(8).



(f)                The existing provision is as follows:



6.2(6)             Notwithstanding any other provision of this Act or any provision in a pre-arranged funeral plan, no action lies against a licensee or former licensee with respect to a withdrawal and payment of a levy under this section or in respect of any loss of interest that may have resulted because of such withdrawal and payment.



(g)               The existing provision is as follows:



6.2(7)             No levy shall be withdrawn under subsection (2) in respect of a pre-arranged funeral plan if, in respect of that plan, the time prescribed under subsection 4(3) for termination, cancellation or discontinuance has not elapsed.



Section 14



(a)               The existing provision is as follows:



7(1)                   Every licensee shall, at such times as may be established by or in accordance with the regulations, report to the Minister or the Board concerning any pre-arranged funeral plans undertaken by the licensee and shall give to the Minister or the Board the information in respect of such plans that is required by or in accordance with the regulations.



(b)(i)         The existing provision is as follows:



7(2)                   Every financial institution shall prepare as of the thirty-first day of December in each year, and at such other times as the Minister may require, a statement showing:



(a)               the number of accounts maintained for licensees by the financial institution pursuant to this Act;



(b)(ii)       The existing provision is as follows:



7(2)                   Every financial institution shall prepare as of the thirty-first day of December in each year, and at such other times as the Minister may require, a statement showing: …



(b)               the amount standing at that date to the credit of each account and the name of the licensee for whom the account is maintained;



(b)(iii)      The existing provision is as follows:



7(2)                   Every financial institution shall prepare as of the thirty-first day of December in each year, and at such other times as the Minister may require, a statement showing: …



(c)                in respect of each account the persons who are paying money under a pre-arranged funeral plan with the licensee for whom the account is maintained, and the amount paid and to be paid thereunder on behalf of each person;



Section 15



(a)               The existing provision is as follows:



7.1(1)             A licensee shall forward for inspection to the Minister, at the request of the Minister, all advertising material, sales literature, catalogues, price lists, trade notices, brochures, folders, posters, displays, photographs, films and other material used or to be used by the licensee, or by anyone acting on behalf of the licensee, in relation to promoting pre-arranged funeral plans or to soliciting persons to enter into pre-arranged funeral plans.



(b)               The existing provision is as follows:



7.1(2)             The Minister may restrict or prohibit the use by a licensee of any advertising material, sales literature, catalogues, price lists, trade notices, brochures, folders, posters, displays, photographs, films or other material referred to in subsection (1) if he finds that the use of the material is on any reasonable grounds objectionable.



(c)                The existing provision is as follows:



7.1(3)             A restriction or prohibition issued under subsection (2) constitutes a condition to which the licence of the licensee is subject.



Section 16



The existing provision is as follows:



7.2(1)             The Minister may during normal business hours enter upon the premises of a licensee where any business is carried on or anything is done in connection with pre-arranged funeral plans, and may inspect all books, records, accounts and documents that relate to or may relate to pre-arranged funeral plans.



7.2(2)             During an inspection referred to in subsection (1), the licensee shall produce for inspection all books, records, accounts and documents that relate or that may relate to pre-arranged funeral plans.



7.2(3)             If during an inspection referred to in subsection (1) the Minister discovers



(a)               anything in respect of which he believes on reasonable and probable grounds an offence under this Act or the regulations has been committed or a violation of a term or condition to which the licensee's licence is subject has occurred, or



(b)               anything that there are reasonable and probable grounds to believe will afford evidence of an offence under this Act or the regulations or of a violation of any term or condition to which the licensee's licence is subject,



the Minister may remove that thing.



7.2(4)             The Minister shall keep anything removed under subsection (3) in his custody but he shall not retain it longer than is reasonably necessary for the prosecution of an offence under this Act or for the conduct of a hearing under section 11.



Section 17



The existing provision is as follows:



8(1)                   A licensee may, with the consent of the person who is making or has completed the payments thereunder, assign a pre-arranged funeral plan to another licensee with notice in writing thereof to the financial institution.



8(2)                   Where an assignment of a pre-arranged funeral plan is made to another licensee, the financial institution maintaining the account on behalf of the licensee shall make all necessary changes in the records and funds in order to make the assignment complete, and if the account of the assignee is maintained elsewhere than with that financial institution, money held under the assigned pre-arranged funeral plan may be transferred to the account maintained on behalf of the assignee, upon the payment by the assignee of the charges and fees of the financial institution.



Section 18



(a) and (b)            The existing provision is as follows:



10(1)               A person is guilty of an offence and liable on summary conviction to a fine of not more than one thousand dollars, and in default of payment is liable to imprisonment in accordance with subsection 31(3) of the Summary Convictions Act,



(a)               who, not being a licensee under this Act, agrees for remuneration, reward, or compensation



(i)         to provide funeral services, or



(ii)       to arrange the provision of funeral services,



under a pre-arranged funeral plan; or



(b)               who being a licensee under this Act, contravenes any provision of this Act.



Section 19



(a)               The existing provision is as follows:



11(1)               The Minister may, after notice to the licensee and a hearing, suspend or cancel a licence issued under this Act if he is satisfied that the licensee



(a)               has been charged with or convicted of an offence under this Act or has violated any term or condition to which his licence is subject,



(b)               has made a material mis-statement in the application for his licence or in any information or material submitted by him to the Minister,



(c)                has been charged with or convicted of misrepresentation, theft or fraud in relation to his business of providing funeral services under pre-arranged funeral plans or in relation to any other business in which he is involved, or



(d)               has demonstrated his incompetence or untrustworthiness to carry on the business of providing funeral services under pre-arranged funeral plans.



(b)               New provisions.



(c)                The existing provision is as follows:



11(2)               A person whose licence is cancelled or suspended under subsection (1) may appeal the cancellation or suspension to a judge of The Court of Queen's Bench of New Brunswick within thirty days after he is notified of the cancellation or suspension.



(d)               The existing provision is as follows:



11(4.1)          The Minister may suspend a licence issued under this Act without a hearing if the Minister is satisfied that the licensee is in arrears with respect to any levies that are required to be paid to the Board for deposit to the credit of the Compensation Fund.



(e)                The existing provision is as follows:



11(4.2)          The Minister may cancel a licence issued under this Act if the Minister is satisfied that the licensee is in arrears more than ten days with respect to any levies that are required to be paid to the Board for deposit to the credit of the Compensation Fund.



(f)                The existing provision is as follows:



11(5)               When a licence is cancelled the Minister shall assign all pre-arranged funeral plans entered into by the person whose licence is cancelled to another licensee or other licensees, with notice to the persons affected by the assignment.



(g)               New provision.



(h)               The existing provision is as follows:



11(5.1)          When a licence is suspended, has lapsed or has been surrendered or where a licensee is unable or unwilling to perform the contracted service under one or more pre-arranged funeral plans, the Minister may assign any or all pre-arranged funeral plans entered into by the person whose licence is suspended, lapsed or surrendered or by the licensee who is unable or unwilling to perform the contracted service, to another licensee or other licensees, with notice to the persons affected by the assignment.



(i)                The existing provision is as follows:



11(6)               An assignment under subsection (5) or (5.1) is effective to assign the pre-arranged funeral plans specified in the assignment and the interest of the person or licensee in any agreement with a financial institution under section 5 with respect to money paid under the pre-arranged funeral plans, and is binding on all persons affected by the assignment.



Section 20



(a)               The existing provision is as follows:



12(2)               Where a pre-arranged funeral plan was entered into before June 20, 1963, if the person agreeing for remuneration, reward or compensation to provide or to make provision for the funeral services required by the plan is unable to qualify for a licence under this Act, he shall within six months of the commencement of this Act, assign the pre-arranged funeral plan to a licensee under this Act upon such terms and conditions and in such manner as may be prescribed by the regulations.



(b)               The existing provision is as follows:



12(3)               Where a pre-arranged funeral plan required to be assigned under subsection (2) is not assigned within the time limited therefor, the person agreeing to provide or make provision for the funeral services under the plan is guilty of an offence and liable on summary conviction to a fine of not more than five hundred dollars and in default of payment is liable to imprisonment in accordance with subsection 31(3) of the Summary Convictions Act.



Section 21



The existing provision is as follows:



13                        Any money standing to the credit of a pre-arranged funeral plan is not, while in the hands of the financial institution or while in course of transmission from or to the person who is to provide the funeral services under the pre-arranged funeral plan, liable to demand, seizure or detention under legal process as against the person depositing the same under the plan or his personal representative or as against the person to whom the money is to be paid under the pre-arranged funeral plan for the provision of funeral services.



Section 22



(a)               New regulation-making authority.



(b)               The existing provision is as follows:



14                        The Lieutenant-Governor in Council may make regulations...



(d)               respecting the application for and the issuing of licences, including the information to be provided by and the conditions to be met by an applicant before a licence is issued and the terms and conditions to which licences are subject;



(c)                New regulation-making authority.



(d)               The existing provision is as follows:



14                        The Lieutenant-Governor in Council may make regulations...



(g)               prescribing the period of time during which a licence is valid;



(e)                The existing provision is as follows:



14                        The Lieutenant-Governor in Council may make regulations...



(h)               respecting the display on pre-arranged funeral plans of the licensee's address to which correspondence may be sent;



Section 23



Transitional provisions.



Section 24



Commencement provision.

 

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