40 Effect of this
Act
Division 2
Offences and Penalties
41 Offences
42 Penalty
for individuals
43 Penalty for
corporations
Part 6
Regulatory Boards
44 Regulatory
boards
45 Bylaws
of regulatory board
46 Report
Part 7
Administrative Matters
47 Delegation
of Director’s duties
48 Evidence
49 Regulations
50 Coming
into force
Schedule
HER MAJESTY, by and with
the advice and consent of the Legislative Assembly of Alberta, enacts as
follows:
Part 1
Purpose, Application
and Exemptions
Purpose statement
1(1) The purpose of this Act is
(a) to
require suppliers, agents and financial planners to disclose to consumers
important information about named financial products described in section 2(i),
(b) to
inform consumers that they have responsibilities as well as rights when they
invest in named financial products,
(c) to
set standards for financial planners,
(d) to
make a variety of remedies available so that disputes about named financial
products can be resolved efficiently and effectively, and
(e) to
encourage the use of readily understandable language in the financial marketplace.
(2) The purpose statement is to be used to help
interpret this Act and to guide those who make decisions under it.
1990 cF-9.5 s1
Definitions
2 In this Act,
(a) “Act”
includes regulations made under this Act;
(b) “agent”
means a person who sells or offers to sell to consumers named financial
products not of that person’s own issue;
(c) “commission”
means compensation, reward or benefit, but does not include salary;
(d) “consumer”
means an individual;
(e) “Director”
means the individual appointed as the Director for this Act;
(f) “financial
planner” means a person referred to in section 21;
(g) “financial
planning” means reviewing, analyzing or organizing personal financial
information for the purpose of preparing a plan to manage a consumer’s
financial affairs;
(h) “Minister”
means the Minister determined under section 16 of the Government
Organization Act as the Minister responsible for this Act;
(i) “named
financial product” means any of the following:
(i) life insurance as defined by the regulations under the Insurance Act except life insurance
contracts that do not provide for a cash surrender value;
(ii) an account on which interest is payable on cash balances by a
treasury branch, credit union, trust company, bank or securities dealer or by
any other person listed in regulations;
(iii) a mutual fund unit that is a security that entitles the holder to
receive, on demand or within a specified period after demand, an amount
computed by reference to the value of a proportionate interest in the whole or
in a part of the net assets, including a separate fund or trust account, of the
issuer of the securities;
(iv) an investment on which a specified rate of interest is paid or
guaranteed, commonly known as an “investment certificate”, “guaranteed
investment certificate” or “term deposit”, but does not include government
bonds, corporate debt instruments, treasury bills or shares;
(v) an investment described in regulations;
(j) “supplier” means a person who sells or
offers to sell to consumers named financial products of that person’s own
issue, and includes the employees of a supplier.
RSA 2000 cF-13 s2;RSA
2000 cI‑3 s856
Application
3(1) This Act applies
(a) when
a supplier, agent or financial planner is a resident of Alberta regardless of
the residence of the consumer,
(b) when
advice is given, or business is solicited or transacted, in Alberta relating to
a named financial product, regardless of the residence of the parties to the
advice, solicitation or transaction, and
(c) to
advice given and investments made on or after May 1, 1991.
(2) If a supplier, agent or financial planner acts
in more than one of those capacities, the provisions of this Act relevant to
each of those capacities apply to that person.
1990 cF-9.5 s3
Exemptions
4 The Lieutenant Governor in Council may, by
regulation, exempt from the application of all or any provision of this Act
(a) a
supplier, agent or financial planner, or
(b) a named financial product, any part of a
named financial product or any class or type of named financial product.
1990 cF-9.5 s4
Part 2
Responsibilities of Consumers and Duties of Suppliers, Agents and Financial
Planners
Division 1
Responsibilities of Consumers
Consumers’ responsibilities
before investing
5(1) A consumer must provide information that the
consumer knows or should know is relevant to or would have a significant effect
on advice provided to the consumer by a supplier, agent or financial planner
about named financial products.
(2) Before
investing in a named financial product, a consumer is responsible
(a) for
becoming reasonably well informed about it,
(b) for
obtaining and reviewing information about it, and
(c) for making a sensible decision about
investing in it.
1990 cF-9.5 s5
Consumers’ responsibilities
after investing
6 After investing in a named financial product, a
consumer who becomes aware of a contravention of this Act by a supplier, agent
or financial planner that causes a loss to the consumer
(a) must
try to minimize the loss, and
(b) must promptly try to resolve the matter with
the supplier, agent or financial planner who the consumer thinks is responsible
for the loss.
1990 cF-9.5 s6
Effect of consumers’ failure to fulfil responsibilities
7 Failure by a consumer to fulfil the
responsibilities referred to in this Division can be considered in assessing or
apportioning damages in claims for loss under this Act.
1990 cF-9.5 s7
Division 2
Duties of Suppliers, Agents and Financial Planners
Duty to provide suitable advice or product
8 When a consumer tells a supplier, agent or
financial planner
(a) why
the consumer needs advice about a named financial product, or
(b) the
purpose the consumer intends to achieve by investing in a named financial
product,
the supplier, agent or financial planner must give advice
or provide a named financial product that is suitable, based on the information
provided by the consumer under this section.
1990 cF-9.5 s8
Duty of financial planner
9(1) Before a financial planner does
financial planning for a consumer, the financial planner must tell the consumer
(a) the cost to the consumer of the financial
planner’s services, and
(b) any other information that the financial
planner is required by regulation to tell the consumer.
(2) Before a financial
planner gives advice to a consumer, the financial planner must tell the
consumer
(a) whether the financial planner receives a
commission for giving advice about, or as a result of an investment by the
consumer in, named financial products or any other financial products,
(b) if there is anything in the relationship the
financial planner has with a supplier, an agent or another financial planner
that could cause the financial planner to be in a conflict of interest in the
financial planner’s dealings with the consumer, and
(c) any other information that the financial
planner is required by regulation to tell the consumer.
1990 cF-9.5 s9
Duty to provide information about named financial products
10(1) Before investing in a named financial product,
a consumer must be told the following information:
(a) the
supplier’s name and, on request, the supplier’s business address,
(b) the
names and business addresses of the agent or financial planner, or both, where
the consumer is dealing with one or both of them,
(c) if
there is an existing plan under which the consumer can be compensated for a
loss relating to a named financial product, how the consumer can obtain
information about the plan,
(d) if
there is a right to cancel an agreement about an investment in a named
financial product, how and when the right can be exercised,
(e) if
the named financial product can be redeemed or surrendered before the end of
its term, the cost and procedure for doing so,
(f) that
the individual with whom the consumer is dealing receives a commission, if that
individual does receive a commission,
(g) if
the named financial product is life insurance, the premium payable,
(h) if
the named financial product is a mutual fund, the cost of purchase, the
commission and any other fees that are payable by the consumer,
(i) any
other information that a supplier, agent or financial planner is required by
regulation to tell a consumer, and
(j) that
the consumer has the right to receive in writing any of the information
disclosed according to this section.
(2) If
the consumer requests that the information be in writing, it must be provided
within a reasonable time.
(3) The
information must be given to the consumer
(a) by
the agent if the consumer is dealing with an agent or by the financial planner
if the consumer is dealing with a financial planner, or
(b) by the supplier if the consumer is not
dealing with an agent or financial planner.
1990 cF-9.5 s10
Duty to provide information about registered plans
11(1) The Lieutenant Governor in Council may make
regulations respecting information that must be given to consumers about the
following plans:
(a) a
registered retirement savings plan;
(b) a
registered education savings plan;
(c) a
registered retirement income fund;
(d) any
other plan described in regulations.
(2) The regulations can describe how the
information must be given and the persons who are responsible for giving the
information.
1990 cF-9.5 s11
Duty to provide financial statements
12(1) If a supplier makes audited financial
statements available to the public, the supplier must provide to a consumer, on
request and free of charge, a copy of the most recent audited financial
statement of the supplier.
(2) A credit union that receives a request for an
audited financial statement may give to the consumer the most recent financial
statement referred to in section 83(1)(b) of the Credit Union Act.
1990 cF-9.5 s12
Duty to use plain language
13(1) The following documents must be in readily
understandable language and form:
(a) application
forms for consumers who wish to invest in named financial products;
(b) agreements
setting out the terms and conditions of named financial products;
(c) any
information provided to a consumer under section 10(2) or 11(1);
(d) any
other documents described in regulations.
(2) Subsection
(1) does not apply to words or forms of documents that are required by law.
(3) Proof
that reasonable efforts have been made to comply and maintain compliance with
subsection (1) is a complete defence
(a) in
a prosecution under subsection (1), or
(b) in a dispute about whether subsection (1)
has been complied with.
1990 cF-9.5 s13
Duty to provide copies of documents
14(1) When a consumer signs a document at the request
of a supplier, agent or financial planner, the consumer must be told that the
consumer can receive a copy.
(2) If a consumer requests a copy, the person
asking the consumer to sign the document must provide the copy.
1990 cF-9.5 s14
Terminology
15 The Lieutenant Governor in Council may make
regulations
(a) defining
words that can be used by suppliers, agents and financial planners in relation
to financial planning or named financial products;
(b) placing restrictions on the use of those
words when they relate to financial planning or named financial products.
1990 cF-9.5 s15
Prohibited business practices
16 Suppliers, agents and financial planners must
not
(a) put
undue pressure on consumers to invest in named financial products,
(b) take
unfair advantage of consumers,
(c) make
representations or conduct themselves in a way that could mislead or deceive
consumers, or
(d) withhold information about named financial
products or about a supplier, agent or financial planner if they know or should
know that consumers might be misled by not having the information.
1990 cF-9.5 s16
Payment for named financial products
17(1) An agent must not accept payment from a
consumer for a named financial product unless it is a cheque, money order or
other negotiable instrument payable to the supplier.
(2) Subsection (1) does not apply to an agent or
class of agents, or in the circumstances described in regulations.
1990 cF-9.5 s17
18 Repealed
2003 cP‑6.5 s68.
Right to cancel some named financial products
19(1) The Lieutenant Governor in Council may make
regulations allowing a consumer to cancel an agreement for a named financial
product within a specified period after the agreement is entered into.
(2) Regulations
under subsection (1) can
(a) list
named financial products that can be cancelled;
(b) state
the particular circumstances that would allow a named financial product to be
cancelled;
(c) describe the conditions under which a named
financial product can be cancelled.
1990 cF-9.5 s19
Effect of failure by
supplier, agent or financial planner
to carry out duties
20 Failure by a supplier, agent or financial
planner to carry out the duties described in this Act
(a) is
to be taken into account in assessing or apportioning damages in claims for
loss under this Act, and
(b) may be the subject of proceedings under
Parts 4 and 5.
1990 cF-9.5 s20
Part 3
Financial Planners
Licensing of financial planners
21 A financial planner
is a person who is licensed to do financial planning under regulations made
under the Fair Trading Act.
1990 cF‑9.5
s21;1998 cF‑1.05 s194
Part 4
Dispute Resolution
Division 1
Dispute Resolution, Arbitration and Court Proceedings
Resolution by the parties
22 If a dispute arises about whether a loss has
resulted because this Act was not complied with, the parties to the dispute
must first attempt to resolve the dispute themselves.
1990 cF-9.5 s22
Requirement for arbitration clause
23(1) Every
agreement between
(a) consumers and suppliers about named
financial products,
(b) consumers and agents about named financial
products, and
(c) consumers and financial planners about
advice about named financial products or any other financial products
must include a provision stating that after a dispute arises, unless
the consumer decides to start court proceedings instead of arbitration proceedings,
the parties must arbitrate a dispute about a loss resulting because this Act
was not complied with, and that the Arbitration Act will apply.
(2) If an
agreement referred to in subsection (1) does not include an arbitration clause,
the model arbitration clause set out in the Schedule that is in force at the
time a notice to arbitrate is served is part of the agreement.
1990 cF-9.5 s23
Appointment of arbitrator
24(1) If the
Director receives a notice to appoint an arbitrator under the model arbitration
clause or an arbitration clause referred to in section 23(1), the Director must
appoint an arbitrator and notify the parties of the name of the arbitrator
within 14 days after receiving the notice.
(2) The
Director can enter into an agreement regarding the appointment of arbitrators
and the administration of arbitration clauses.
1990 cF-9.5 s24
Arbitration decision
25(1) As soon
as possible after making a decision, an arbitrator appointed under this Act
must file a copy of the decision with the Director.
(2) The copy
of a decision can be inspected by the public at reasonable times unless both
parties to the arbitration request the Director to keep it confidential, in
which case the Director must decide whether to make all or part of the decision
public.
1990 cF‑9.5 s25
Starting court proceedings
26(1) After a dispute arises about a loss resulting
because this Act was not complied with, the consumer may decide to start court
proceedings instead of arbitration proceedings.
(2) If
court proceedings are started,
(a) a
civil claim can be filed in The Provincial Court of Alberta if the amount
claimed does not exceed the limit prescribed for civil claims under the Provincial Court Act, or
(b) a
statement of claim can be filed in the Court of Queen’s Bench.
(3) A copy of the civil claim or statement of claim
must be served on the Director before any further step is taken.
RSA 2000 cF‑13
s26;RSA 2000 c16(Supp) s26
Matters that the courts and arbitrators must consider
27(1) A court or an arbitrator must consider
(a) whether
each party to the dispute has complied with this Act and, if not, why not,
(b) the
degree to which each party has failed to comply with this Act,
(c) the
opportunity of each party to eliminate or minimize the loss, and
(d) any
other factors that the court or the arbitrator considers appropriate.
(2) Based on the factors described in subsection
(1), the court or an arbitrator can make a decision and can, if appropriate,
apportion the damages and any costs awarded.
1990 cF‑9.5 s27
Court proceedings by a consumer organization
28(1) In this section, “consumer organization” means
a corporation that has as its primary objective the protection or advancement
of the interests of consumers and that is not incorporated for the purpose of
acquiring financial gain for its members.
(2) A
consumer organization can start proceedings in the Court of Queen’s Bench
against a supplier, agent or financial planner in respect of an activity that
the consumer organization alleges contravenes this Act.
(3) A
consumer organization does not need to have an interest in or be affected by
the subject‑matter of the proceedings in order to start proceedings under
subsection (2).
(4) When
proceedings are started under this section, the court may order a consumer
organization to give security for the costs of the proceedings in an amount the
court considers proper.
(5) If
a consumer organization is successful in its claim, the court may do any or all
of the following:
(a) declare
that the supplier, agent or financial planner has contravened this Act;
(b) grant
an injunction restraining the supplier, agent or financial planner from
engaging in the activity or a similar activity that would or could contravene
this Act;
(c) award costs.
1990 cF‑9.5 s28
Division 2
Proceedings Initiated by the Director
Investigative powers of the Director
29(1) If the Director has reason to believe that this
Act is not being complied with, the Director must carry out an inquiry or
investigation to determine whether this Act has been contravened.
(2) In
the course of an inquiry or investigation, the Director can require a person
(a) to
give written replies to questions, and
(b) to give the Director any information that
the Director considers necessary for the inquiry or investigation.
1990 cF‑9.5 s29
Order to enter and search
30(1) If the Director has reason to believe that this
Act is not being complied with, the Director can apply to the Provincial Court
for an order authorizing the Director to enter and search anywhere for evidence
that this Act has been contravened or of the extent of the contravention.
(2) The
application can be made without notice to any person.
(3) The court may make any order it considers
appropriate, with or without conditions.
1990 cF‑9.5 s30
Effect of an entry and search order
31(1) If an entry and search order is made, the
Director can look at, take away, take extracts from or copy anything relevant
to the search.
(2) The
Director must give to the person who is in control of the premises that have
been entered and searched a receipt for anything taken away after a search and
must return the original as soon as possible after it is removed.
(3) If the Director keeps the original of anything,
the Director must allow the owner of the thing to have reasonable access to it.
1990 cF‑9.5 s31
Appeal of entry and search order
32(1) A person can apply to the Court of Queen’s
Bench
(a) to
have the order changed or cancelled, or
(b) for
an order declaring that the entry and search order was improperly made.
(2) The court may make any order it considers
appropriate, with or without conditions.
1990 cF‑9.5 s32
Undertakings
33(1) In this section, “undertaking” means a binding
written commitment to the Director by a supplier, agent or financial planner.
(2) When
the Director is of the opinion that a supplier, agent or financial planner is
not complying with this Act, the supplier, agent or financial planner, as the
case may be, can enter into an undertaking with the Director.
(3) An
undertaking can include any of the following agreements:
(a) to
stop engaging in the practice described in the undertaking or to change the
practice;
(b) to
provide compensation to consumers who have incurred a loss;
(c) to
publicize the undertaking or the action being taken to stop or change a former
practice;
(d) to
pay the costs of the Director’s investigation and any costs associated with the
undertaking,
or any other provision
that the Director and the supplier, agent or financial planner, as the case may
be, agree on.
(4) The
content and form of an undertaking must be satisfactory to the Director.
(5) The Director must keep a public record of
undertakings given under this section.
1990 cF‑9.5 s33
Director’s order
34(1) If the Director has reason to believe that this
Act is not being complied with, the Director can make an order directing a
supplier, agent or financial planner to stop engaging in the practice described
in the order or to change the practice.
(2) Information
about the right to appeal a Director’s order must be included in the order.
(3) The Director must serve a copy of an order made
under this section on the person who is the subject of the order.
1990 cF‑9.5 s34
Appeal of Director’s
order
35(1) A person who is affected by an order of the
Director made under section 34 can appeal the order to the Court of Queen’s
Bench within 30 days after service of the order on that person.
(2) The
court may confirm, change or cancel the order on any terms or conditions it
considers appropriate.
(3) The court may, on application, suspend all or
part of the operation of the order on any condition it considers appropriate,
pending the outcome of an appeal under this section.
1990 cF‑9.5 s35
Court proceedings started by the Director
36(1) The Director can start legal proceedings in the
Court of Queen’s Bench against a supplier, agent or financial planner if the
Director has reason to believe that the supplier, agent or financial planner
has not complied with this Act, an undertaking given under section 33 or a
Director’s order made under section 34.
(2) In
proceedings under this section, the court may make any order it considers
appropriate taking into consideration
(a) the
purposes of this Act,
(b) the
responsibilities and rights of persons under this Act,
(c) the
need to protect the public against unfair business practices, and
(d) when appropriate, the need to award punitive
damages.
1990 cF‑9.5 s36
Court order protecting funds
37(1) If a supplier or agent has been paid money by a
consumer for a named financial product or if a financial planner has been paid
money by a consumer for financial planning and
(a) the
supplier, agent or financial planner has absconded from Alberta, or
(b) the
Director has reason to believe that the supplier, agent or financial planner
(i) is about to abscond from Alberta,
(ii) has attempted to remove any property from Alberta in order to
avoid legal liabilities,
(iii) has attempted to sell or dispose of property in order to avoid
legal liabilities, or
(iv) is misusing money or other assets paid or delivered by a
consumer,
the Director can,
whether or not any other action has been taken under this Act, apply to the
Court of Queen’s Bench for an order under subsection (2), without notice to the
person affected by the order.
(2) The
court may make one or more of the following orders:
(a) an
order prohibiting any per
