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Collection and Debt Settlement Services Act

R.R.O. 1990, REGULATION 74

GENERAL

Consolidation Period: From April 23, 2018 to the e-Laws currency date.

Last amendment: 319/18.

Legislative History: 690/91, 582/92, 515/97, 54/98, 42/00, 231/00, 466/01, 467/01, 299/05, 103/06, 588/07, 24/08, CTR 17 NO 11 - 2, 309/14, 460/17, 319/18.

This is the English version of a bilingual regulation.

CONTENTS

 

Application

1. (1) An application for registration as a collection agency or a renewal thereof shall be in a form approved by the Registrar.  R.R.O. 1990, Reg. 74, s. 1 (1); O. Reg. 309/14, s. 1 (1).

(2) Revoked: O. Reg. 460/17, s. 1 (1).

(3) A notice by a collection agency under clause 20 (1) (a), (b) or (c) of the Act shall be in a form approved by the Registrar.  R.R.O. 1990, Reg. 74, s. 1 (3); O. Reg. 309/14, s. 1 (3); O. Reg. 460/17, s. 1 (2).

(4) A request for voluntary cancellation of registration under subsection 8 (7) of the Act shall be in a form approved by the Registrar.  R.R.O. 1990, Reg. 74, s. 1 (4); O. Reg. 309/14, s. 1 (4).

(5) When notified by the Registrar, the applicant shall file any fee established by the Minister. O. Reg. 460/17, s. 1 (3).

2.-11. Revoked: O. Reg. 460/17, s. 2.

Registration

12. (1) No individual shall be registered as a collection agency unless the individual,

(a) has had at least two years of actual experience in each phase of the collection agency business, or has related experience that, in the opinion of the Registrar, is equivalent to that actual experience; and

(b) is 18 years of age or over. O. Reg. 460/17, s. 2.

(2) No corporation shall be registered as a collection agency unless an individual who satisfies the requirement in subsection (1) is involved in the management of the collection agency. O. Reg. 460/17, s. 2.

13. (1) Every registration expires on the date shown on the certificate of registration unless an application for renewal of registration in a form approved by the Registrar, together with the fee established by the Minister, is filed with the Registrar prior to the date of expiry.  R.R.O. 1990, Reg. 74, s. 13 (1); O. Reg. 309/14, s. 4 (1); O. Reg. 460/17, s. 4 (1).

(2) Every applicant for registration shall state in the application an address for service in Ontario.  R.R.O. 1990, Reg. 74, s. 13 (2).

(3) A collection agency shall not operate any branch office unless such branch office is authorized by the registration.  R.R.O. 1990, Reg. 74, s. 13 (3).

(4) Every applicant for registration as a collection agency shall file with the Registrar copies of all forms and form letters that it proposes to use in dealing with debtors, as well as copies of forms of agreement that it proposes to use in its dealings with persons for whom it acts or proposes to act.  R.R.O. 1990, Reg. 74, s. 13 (4).

(5) Where an applicant for registration is a corporation, a copy of a current financial statement prepared by a person licensed under the Public Accounting Act, 2004, or where the corporation is recently incorporated or is a sole proprietorship or partnership, an opening financial statement prepared by a person licensed under the Public Accounting Act, 2004 shall be attached to the application.  R.R.O. 1990, Reg. 74, s. 13 (5); O. Reg. 24/08, s. 3.

(6) A copy of the current financial statement prepared by a person licensed under the Public Accounting Act, 2004 shall be attached to the application for renewal referred to in subsection (1).  R.R.O. 1990, Reg. 74, s. 13 (6); O. Reg. 24/08, s. 3.

(7) A registration of a collection agency is not transferable.  R.R.O. 1990, Reg. 74, s. 13 (7).

(8), (9) Revoked: O. Reg. 460/17, s. 4 (2).

(10) Every person registered as a collection agency shall operate from a permanent place of business in Ontario that is not a dwelling and that shall be open during normal business hours. O. Reg. 309/14, s. 4 (3).

(10.1) Every collection agency shall maintain a working toll-free telephone number. O. Reg. 460/17, s. 4 (3).

(10.2) Upon the request of a debtor, a collection agency shall provide to the debtor a breakdown of the current amount owing under the debt. O. Reg. 460/17, s. 4 (3).

(11) The Registrar may require further information or material to be submitted by any applicant or any registered person within a specific time limit and may require verification by affidavit or otherwise of any information or material then or previously submitted.  R.R.O. 1990, Reg. 74, s. 13 (11).

(12) Every collection agency or branch thereof shall keep on its premises proper records and books of accounts showing money received and money paid out and such books shall include a receipts journal, disbursements journal, general journal, clients’ ledger, general ledger and such additional records as the Registrar considers necessary in accordance with accepted principles of double entry bookkeeping.  R.R.O. 1990, Reg. 74, s. 13 (12).

(12.1) Every collection agency or branch thereof shall maintain and store the records of its activities conducted under the Act separate from the records it maintains with respect to any other activities. O. Reg. 460/17, s. 4 (4).

(13) An entry in a record book of account kept under subsection (12) shall be retained for a period of six years from the date of the entry.  R.R.O. 1990, Reg. 74, s. 13 (13).

(14) Every person registered as a collection agency that collects debts for a creditor that  exercises control directly or indirectly over the collection agency shall disclose in all correspondence and communications the full name of the creditor and an itemized breakdown of each account in arrears owing to the creditor. O. Reg. 460/17, s. 4 (5).

(14.1) Every person registered as a collection agency that collects debts for itself as a creditor shall disclose its full name in all correspondence and communications. O. Reg. 460/17, s. 4 (5).

(15) No person who is registered as a collection agency shall engage directly or indirectly in the business of lending money, whether as principal or as agent, except to the extent the person has purchased a debt and is renegotiating terms for the payment of that debt. O. Reg. 460/17, s. 4 (5).

(15.1) For the purposes of subsection (15) the renegotiation of terms for the payment of a debt with a debtor does not include the extension of additional credit to the debtor. O. Reg. 460/17, s. 4 (5).

(16) Revoked: O. Reg. 460/17, s. 4 (5).

14. A financial statement referred to in subsection 13 (6) shall include a statement by the person who prepares the financial statement that the registrant has complied with the provisions of this Regulation respecting trust accounts.  R.R.O. 1990, Reg. 74, s. 14.

15. (1) Every individual applicant and every active officer or director of a corporate applicant or registrant who has not been previously registered shall pass a written examination based on the Act and such further subject matters as the Registrar prescribes.  R.R.O. 1990, Reg. 74, s. 15 (1).

(2) Every collection agency that is not a corporation and every officer or director of a corporate collection agency, who has been previously registered but has not been registered under this Act for a period of one year or more preceding an application for registration, shall write and pass the examination referred to in subsection (1).  R.R.O. 1990, Reg. 74, s. 15 (2).

(3) No corporation shall be registered or shall maintain its registration as a collection agency unless all of its officers and directors who are actively engaged in the business of the agency have met the examination requirements.  R.R.O. 1990, Reg. 74, s. 15 (3).

(4) The examination shall be conducted in the presence of a presiding officer appointed by the Registrar or his or her nominee.  R.R.O. 1990, Reg. 74, s. 15 (4).

(5) The examination papers shall be marked by the Registrar or his or her nominee.  R.R.O. 1990, Reg. 74, s. 15 (5).

(6) Not less than 75 per cent shall be considered a pass mark for the examination.  R.R.O. 1990, Reg. 74, s. 15 (6).

(7) The Registrar or his or her nominee may review, and, where so requested in writing by an applicant who fails to obtain the pass mark prescribed in subsection (6), shall review the examination paper and make such changes in the marks obtained as he or she considers proper.  R.R.O. 1990, Reg. 74, s. 15 (7).

(8) Upon written application to the Registrar, an applicant who fails to obtain the pass mark prescribed in subsection (6) may take a further examination at any time, but where he or she fails the second examination, the applicant shall not take any subsequent examination until after the expiration of four months from the date of his or her latest examination.  R.R.O. 1990, Reg. 74, s. 15 (8).

16. Where a collection agency is a corporation it shall, within five days after the event, notify the Registrar in a form approved by the Registrar where there is a change in a director of the corporation or where there is a change in its controlling interest.  R.R.O. 1990, Reg. 74, s. 16; O. Reg. 309/14, s. 5.

Trust Funds

17. (1) All funds received by a collection agency in the normal course of business from clients or debtors, other than those which clearly represent payment for fees earned, and all advance payments or deposits for services to be rendered or expenses to be incurred at some future date are deemed to be trust funds.  R.R.O. 1990, Reg. 74, s. 17 (1).

(1.1) Subsection (1) does not apply to funds received by a collection agency where the funds are owed to the collection agency itself as a creditor. O. Reg. 460/17, s. 5 (1).

(2) Every collection agency or branch thereof shall maintain in respect of all trust funds that come into its hands a separate trust account in any Ontario branch of a bank, a corporation registered under the Loan and Trust Corporations Act or a credit union as defined in the Credit Unions and Caisses Populaires Act, 1994 authorized by law to accept deposits, and such account shall be designated as the “Collection and Debt Settlement Services Act Trust Account” in English and “compte en fiducie prévu par la Loi sur les services de recouvrement et de règlement de dette” in French. O. Reg. 309/14, s. 6.

(2.1) Every collection agency or branch thereof shall request that the bank, corporation or credit union at which it maintains a trust account include the designations mentioned in subsection (2) in any written reference the bank, corporation or credit union makes to the trust account. O. Reg. 460/17, s. 5 (1).

(3) For the purposes of this section, no collection agency or branch thereof shall maintain more than one account designated as a trust account without first notifying the Registrar and obtaining the Registrar’s consent in writing.  R.R.O. 1990, Reg. 74, s. 17 (3).

(4) All trust funds received by a collection agency or branch thereof whether by cash, cheque, or otherwise, shall be deposited in the collection agency trust account within two banking days of their receipt.  R.R.O. 1990, Reg. 74, s. 17 (4).

Note: On July 1, 2018, subsection 17 (4) of the Regulation is revoked and the following substituted: (See: O. Reg. 460/17, s. 5 (2))

(4) A collection agency or branch thereof shall deposit all trust funds it receives from a debtor located in Ontario, whether by cash, cheque, electronic transfer or otherwise, into the collection agency’s trust account within two banking days of their receipt. O. Reg. 460/17, s. 5 (2).

(4.1) No collection agency or branch thereof shall, whether by cash, cheque, electronic transfer or otherwise, deposit any trust funds received from a debtor located in Ontario into a trust account outside of Ontario, or transfer trust funds deposited in the collection agency’s trust account into a trust account outside of Ontario, except in accordance with subsection (4.2). O. Reg. 460/17, s. 5 (2).

(4.2) On the clear instructions of a creditor, a collection agency or branch thereof may deposit trust funds received from a debtor located in Ontario into a trust account in another jurisdiction in Canada, or transfer trust funds deposited in the collection agency’s trust account into a trust account in another jurisdiction in Canada, if the trust account in the other jurisdiction has the equivalent restrictions on the use of trust funds as would apply to a trust account in Ontario. O. Reg. 460/17, s. 5 (2).

(4.3) No collection agency or branch thereof shall maintain a trust account in another jurisdiction in Canada outside of Ontario into which it may deposit or transfer trust funds received from a debtor located in Ontario, without informing the Registrar, in a form approved by the Registrar, of the account and the creditor’s instruction that the collection agency use the account, and obtaining the Registrar’s consent in writing. O. Reg. 460/17, s. 5 (2).

(4.4) Where a collection agency or branch thereof disburses money held in a trust account, the money shall be disbursed directly from the collection agency’s trust account to the recipient and shall not be transferred through any other accounts. O. Reg. 460/17, s. 5 (2).

(5) No collection agency shall disburse or withdraw any money held in trust, except in accordance with the terms and conditions upon which the money was received or as otherwise provided.  R.R.O. 1990, Reg. 74, s. 17 (5).

(6) Where a collection agency collects debts for other persons in consideration of the payment of a commission or other remuneration it shall remit all money collected to the persons entitled thereto in accordance with subsection 18 (1).  R.R.O. 1990, Reg. 74, s. 17 (6).

(7) Nothing in this section shall be construed as affecting the right to any remedy available in law to a collection agency or any other person having a lawful claim to the money held in the trust account referred to in subsection (2).  R.R.O. 1990, Reg. 74, s. 17 (7).

(8) When so requested in writing by the Registrar or a person entitled to an accounting, every collection agency shall account within thirty days for all trust funds received from or on behalf of the person entitled to such accounting.  R.R.O. 1990, Reg. 74, s. 17 (8).

18. (1) Every collection agency shall without any notice or demand account for all money collected and pay the money less the proper fees of such collection agency with respect to the debt the money is collected on, to the person entitled thereto on or before the 20th day of the month following the month in which the money was collected, but when the money collected and due is less than $15, payment to the person entitled thereto shall be made within ninety days.  R.R.O. 1990, Reg. 74, s. 18 (1); O. Reg. 460/17, s. 6 (1).

(1.1) Subsection (1) does not apply to money collected by a collection agency where the money is owed to the collection agency itself as a creditor. O. Reg. 460/17, s. 6 (2).

(2) Where for any reason a collection agency is unable to comply with subsection (1) and any money collected by it remains for a period of six months unclaimed by, or unpaid to, the person entitled to the money, it shall cause the money to be paid to the Minister of Finance who may pay the money to the person entitled thereto upon satisfactory proof being furnished by the person that the person is entitled to receive the money.  R.R.O. 1990, Reg. 74, s. 18 (2).

Exemptions

Note: On July 1, 2018, the Regulation is amended by adding the following sections after the heading “Exemptions”: (See: O. Reg. 319/18, s. 1)

18.1 (1) In this section,

“lawyer” means a person licensed to practise law in Ontario as a barrister and solicitor; (“avocat”)

“professional business” in the case of a lawyer, has the same meaning as in subsection 1 (1) of the Law Society Act. (“activités professionnelles”) O. Reg. 319/18, s. 1.

(2) For the purpose of this section, a person is considered to be an employee of a lawyer if the person is employed, appointed or authorized to act by any partnership, corporation or other entity in respect of which the lawyer is employed, appointed or authorized to act and in respect of which the lawyer is a partner or a shareholder or holds a similar position of authority. O. Reg. 319/18, s. 1.

(3) Nothing in this section applies to materials that are in the custody of or prepared by a lawyer or his or her employees if the materials are subject to solicitor-client privilege or other legally recognized forms of privilege. O. Reg. 319/18, s. 1.

(4) Despite clause 2 (1) (a) of the Act, the following provisions of the Act and the regulations apply to a lawyer or to an employee of a lawyer, reading the references, if any, to a collection agency in those provisions as being references to the lawyer or the employee, as the case may be, if the person holds himself or herself out to the public as a person who obtains or arranges for payment of money owing to another person in addition to the lawyer’s professional business:

1. Section 1, subsection 2 (0.1), sections 2.1, 12, 19 and 20, subsections 21 (1) and (2) and sections 22.1, 23 and 25 of the Act, except for the reference to section 16.3 or 16.4 or clause 22 (e) or (f) in subsection 25 (2) of the Act.

2. Sections 26, 27 and 28 of the Act, except for,

i. clause 28 (1) (d) of the Act,

ii. the reference to section 16.3 or 16.4 and subsection 16.5 (1), (2), (3) or (4), 16.6 (1) or (6) or 16.8 (2) or clause 22 (f) in clause 28 (1) (c) of the Act, and

iii. the reference to “or fails to take reasonable care to prevent the corporation from committing an offence mentioned in clause (1) (d)” in subsection 28 (2) of the Act.

3. Sections 29 to 29.1 of the Act.

4. Clauses 30 (1) (f), (h) and (i) of the Act.

5. Subsections 1 (3) and 13 (12) and (13) of this Regulation.

6. Sections 16, 18, 19.1.1, 19.6, 19.7 and 19.11 of this Regulation.

7. Section 33 of this Regulation if that section refers to provisions of the Act and this Regulation that apply to the lawyer or the employee, as the case may be.

8. Ontario Regulation 461/17 (Administrative Penalties) made under the Act, if that Regulation refers to provisions of the Act and this Regulation that apply to the lawyer or the employee, as the case may be. O. Reg. 319/18, s. 1.

(5) If a provision of the Act or the regulations listed in subsection (4) applies to a lawyer or an employee of a lawyer, the person shall,

(a) provide the Registrar with a current address for service;

(b) file with the Registrar,

(i) copies of all forms and form letters that the person proposes to use in dealing with debtors, and

(ii) copies of forms of agreement that the person proposes to use in dealings with others for whom the person acts or proposes to act;

(c) produce records and information, to the Registrar upon request within a specified time limit, regarding the person’s activities under the Act and the regulations;

(d) at the request of the Registrar, provide verification, by affidavit or otherwise, of any information or material that the person provides to the Registrar; and

(e) maintain and store the records of the person’s activities under the Act and the regulations separate from the records that the person maintains with respect to any other activities. O. Reg. 319/18, s. 1.

(6) Despite clause 2 (1) (a) of the Act, the provisions of the Act and the regulations listed in subsection (7) apply to a lawyer or to an employee of a lawyer if the lawyer or employee, as the case may be, is collecting a debt from a specific person, reading the references, if any, to a collection agency or a person registered as a collection agency in those provisions as being references to the lawyer or the employee, as the case may be, and if the lawyer or employee, as the case may be, with respect to that debt,

(a) has acquired the debt through purchase, assignment, transfer or any other means and is seeking to collect the debt on his or her own behalf and not in the regular practice of the lawyer’s professional business on behalf of a client;

(b) on behalf of the same creditor, by any oral means of communication, contacts the debtor, the debtor’s spouse, a member of the debtor’s family or household, a relative, neighbour, friend or acquaintance of the debtor, the debtor’s employer, a person who guaranteed the debt or a person mistakenly believed to be the debtor more than three times in a seven-day period or holds himself or herself out to the public as able to provide such a service, except if the person being contacted consents to or requests the contact at the time of the contact; or

(c) employs an automatic dialing-announcing device, a predictive dialing device, bulk texting or any other similar communication technology in communications with the debtor, the debtor’s spouse, a member of the debtor’s family or household, a relative, neighbour, friend or acquaintance of the debtor, the debtor’s employer, a person who guaranteed the debt or a person mistakenly believed to be the debtor or holds himself or herself out to the public as able to provide such a service. O. Reg. 319/18, s. 1.

(7) The provisions of the Act and the regulations that subsection (6) describes as being listed in this subsection are the following:

1. The provisions listed in any of the paragraphs of subsection (4).

2. Section 22 of the Act except for clauses (d) and (f) of that section.

3. Subsections 13 (14), (15) and (15.1) of this Regulation.

4. Sections 19.10 and 20 to 21.4 of this Regulation.

5. Subsections 22 (1) and (3) to (9) and 23 (1) and sections 24, 25 and 31 of this Regulation. O. Reg. 319/18, s. 1.

(8) If a provision of the Act or the regulations listed in subsection (7) applies to a lawyer or an employee of a lawyer, the person shall,

(a) provide the Registrar with a current address for service;

(b) file with the Registrar,

(i) copies of all forms and form letters that the person proposes to use in dealing with debtors, and

(ii) copies of forms of agreement that the person proposes to use in dealings with others for whom the person acts or proposes to act;

(c) produce records and information, to the Registrar upon request within a specified time limit, regarding the person’s activities under the Act and the regulations;

(d) at the request of the Registrar, provide verification, by affidavit or otherwise, of any information or material that the person provides to the Registrar;

(e) keep on the person’s premises proper records and books of account regarding the person’s activities under the Act and the regulations, showing money received and money paid out; the records and books of account shall include a receipts journal, disbursements journal, general journal, clients’ ledger, general ledger and the additional records that the Registrar considers necessary in accordance with accepted principles of double entry bookkeeping;

(f) retain an entry in a record or book of account described in clause (e) for a period of six years from the date of the entry; and

(g) maintain and store the records of the person’s activities under the Act and the regulations separate from the records that the person maintains with respect to any other activities. O. Reg. 319/18, s. 1.

(9) Subsections (4), (6) and (7) cease to apply to a lawyer or an employee of a lawyer with respect to a specific debt if the lawyer or the employee, as the case may be, acting in the regular practice of the lawyer’s professional business on behalf of a client, commences a legal proceeding against the debtor with respect to the debt. O. Reg. 319/18, s. 1.

18.2 (1) In this section,

“paralegal” means a paralegal member as described in clause 2 (2) (d) of the Law Society Act; (“parajuriste”)

“professional business” in the case of a paralegal, has the same meaning as in subsection 1 (1) of the Law Society Act. (“activités professionnelles”) O. Reg. 319/18, s. 1.

(2) For the purpose of this section, a person is considered to be an employee of a paralegal if the person is employed, appointed or authorized to act by any partnership, corporation or other entity in respect of which the paralegal is employed, appointed or authorized to act and in respect of which the paralegal is a partner or a shareholder or holds a similar position of authority. O. Reg. 319/18, s. 1.

(3) Subject to subsection (4), the Act does not apply to a paralegal or an employee of a paralegal if the paralegal or the employee, as the case may be, is acting in the regular practice of the paralegal’s professional business. O. Reg. 319/18, s. 1.

(4) Subsections 18.1 (3) to (9) apply to a paralegal or to an employee of a paralegal, reading the references to a lawyer or an employee of a lawyer in those provisions as being references to the paralegal or the employee of the paralegal, as the case may be. O. Reg. 319/18, s. 1.

19. Revoked: O. Reg. 460/17, s. 7.

19.1 (1) Revoked: O. Reg. 460/17, s. 8 (1).

(2) Fees established by the Minister do not apply to a not-for-profit corporation that is a registered charity as defined in the Income Tax Act (Canada) and that provides credit counselling services. O. Reg. 309/14, s. 7; O. Reg. 460/17, s. 8 (2).

(3) Section 15 does not apply to an officer or director of a not-for-profit corporation that is a registered charity as defined in the Income Tax Act (Canada) and that provides credit counselling services. O. Reg. 309/14, s. 7.

19.1.1 (1) Subsection 4 (2) and clause 22 (d) of the Act and section 21 of this Regulation do not apply to a collection agency or collector that is contacting a debtor in the name of a creditor pursuant to a written contract between the collection agency and the creditor under which,

(a) the collection agency is authorized to act in the name of the creditor to collect money owed that is no more than 60 days past due;

(b) the collection agency or collector is not compensated contingent on or based on the amount, if any, collected from the debtor;

(c) the collection agency or collector does not receive payment directly from the debtor and may not request that the debtor make any payment to the collection agency or collector; and

(d) the collector is required to give the debtor the name of the creditor and his or her own name in every contact with the debtor.  O. Reg. 466/01, s. 1; O. Reg. 309/14, s. 8.

(2) The exemptions in subsection (1) only apply to a registered collection agency while engaged in the collection of money owed as described in that subsection and do not apply to the same collection agency while engaged in any other activity.  O. Reg. 466/01, s. 1; O. Reg. 460/17, s. 9.

(3) A collection agency that is exempt under subsection (1) shall, before engaging in the activity described in that subsection, notify the Registrar in writing,

(a) that the collection agency has entered into a contract as described in that subsection; and

(b) of the name and address of the creditor.  O. Reg. 466/01, s. 1.

19.2 The Act does not apply to an authorized foreign bank within the meaning of section 2 of the Bank Act (Canada).  O. Reg. 24/08, s. 4.

19.3 The Act does not apply to a person with respect to the person’s acceptance of payment of accounts on behalf of a creditor acting in the creditor’s name, provided that the person does not otherwise negotiate with or in any way attempt to obtain payment from debtors in respect of the amount owing other than by presenting bills. O. Reg. 460/17, s. 10 (1).

19.4 The Act does not apply to an employee, designate or representative of an owner of a building who is responsible for managing the building, including by renting rooms or units, receiving rent and maintaining the building, with respect to dealing with amounts owed for rent to the owner by tenants of the building. O. Reg. 460/17, s. 10 (1).

19.5 (1) The Act does not apply to corporations in respect of the collection of debts for other corporations that are their affiliates, as defined in section 1 of the Business Corporations Act. O. Reg. 460/17, s. 10 (1).

(2) Despite subsection (1), if the person owning the debt to be collected purchased the debt in arrears, then the Act continues to apply both to that person and to any affiliate of that person. O. Reg. 460/17, s. 10 (1).

19.6 The Act does not apply to a person with respect to the collection or attempted collection of a debt for which the person is the original creditor. O. Reg. 460/17, s. 10 (1).

19.7 The Act does not apply to a person with respect to the collection of debt from a person other than an individual, including an individual who is the owner of a sole proprietorship or a member of a partnership or who has provided a personal guarantee. O. Reg. 460/17, s. 10 (1).

19.8 The Act does not apply to a person or entity registered under the Securities Act or Commodity Futures Act, to the extent of the business authorized by such registration, or to the employees of the registered person or entity. O. Reg. 460/17, s. 10 (1).

19.9 The Act does not apply to a person or entity licensed under the Mortgage Brokerages, Lenders and Administrators Act, 2006 with respect to the activities authorized by the licence. O. Reg. 460/17, s. 10 (1).

19.10 (1) Clause 22 (b) of the Act does not apply to a collection agency or collector if the charge or cost of communication or attempted communication referred to in that clause is fully reimbursed to the person communicated with or with whom communication was attempted within 15 days of the person presenting evidence of the charge or cost to the collection agency. O. Reg. 460/17, s. 10 (1).

(2) In order to receive the reimbursement referred to in subsection (1), the person must present evidence of the charge or cost incurred by that person to the collection agency no later than 60 days after the day the person became aware of the charge or cost. O. Reg. 460/17, s. 10 (1).

(3) Evidence of the charge or cost referred to in subsection (1) must be in the form of a copy of a bill or other communication from the person’s telephone or other communications provider showing the cost or charge incurred by that person. O. Reg. 460/17, s. 10 (1).

19.11 The exemption from the Act provided for in clause 2 (1) (l) of the Act does not apply unless the debt is collected under the original creditor’s name and the money owed is no more than 60 days after the date it was first due and payable. O. Reg. 460/17, s. 10 (2).

Prohibited Practices and Methods in the Collection of Debts

20. In sections 21 to 25,

“contact” includes communication by e-mail or voice mail;

“debtor’s employer” includes any and all of the employer’s employees;

“spouse” means,

(a) a spouse as defined in section 1 of the Family Law Act, or

(b) either of two persons who live together in a conjugal relationship outside marriage.  O. Reg. 103/06, s. 2.

21. (1) No collection agency or collector shall demand payment, or otherwise attempt to collect payment, of a debt from a debtor unless the collection agency or collector has sent the debtor, by ordinary mail, a private written notice setting out the following information:

1. The name of the creditor to whom the debt is owed.

2. The balance owing on the debt.

3. The identity of the collection agency or collector who is demanding payment of the debt.

4. The authority of the collection agency or collector to demand payment of the debt.  O. Reg. 103/06, s. 2.

(2) No collection agency or collector shall make a telephone call to or a personal call on the debtor before the sixth day after mailing the written notice required by subsection (1).  O. Reg. 103/06, s. 2.

(3) Subsection (1) does not require that the written notice be sent before a written demand for payment but is satisfied if the written demand for payment is contained in the written notice.  O. Reg. 103/06, s. 2.

(4) If a debtor states to a collection agency or collector that the debtor has not received the notice required by subsection (1), the collection agency or collector shall send the notice to the debtor at the address provided by the debtor, and no demand for payment, or other attempt to collect payment, of the debt shall be made before the sixth day after the day the notice is sent.  O. Reg. 103/06, s. 2.

Note: On July 1, 2018, section 21 of the Regulation is revoked and the following substituted: (See: O. Reg. 460/17, s. 11)

21. (1) No collection agency or collector shall demand payment or otherwise attempt to collect payment of a debt from a debtor or in any other way contact the debtor before the sixth day after sending a notice described in subsection (2), except as permitted under subsection (3), section 21.1 or 21.2. O. Reg. 460/17, s. 11.

(2) The notice shall be a private written notice to the debtor setting out the following information:

1. The name of the creditor to whom the debt is owed and, if different, the name of the creditor to whom the debt was originally owed.

2. The type of financial or other product that incurred the debt, described in sufficient detail to distinguish among different products offered by the same creditor.

3. The amount of the debt on the date it was first due and payable and, if different, the amount currently owing.

4. The statement that the collection agency will provide a breakdown of the current amount owing, if requested.

5. The following mandatory statement:

“Should you have any questions or would like further information regarding the current amount of your debt or the amount of your debt when it was first due and payable and, if applicable, would like a breakdown of the difference between those amounts, please contact our office at the number below as this information is available upon request.”

6. The identity of the collection agency and collector who are demanding payment of the debt.

7. The authority of the collection agency to demand payment of the debt.

8. The information that if the debtor notifies the collection agency or collector that a particular method of communication causes the debtor to incur costs, or if the collection agency or collector otherwise becomes aware of that fact, the collection agency and collector are prohibited from subsequently contacting or attempting to contact the debtor using that method of communication.

9. The contact information of the collection agency, including the full mailing address and toll-free telephone number and, where available, e-mail address and fax number. O. Reg. 460/17, s. 11.

(3) Despite subsection (1), a written demand for payment may be included with the written notice. O. Reg. 460/17, s. 11.

(4) The written notice may be sent by ordinary mail or by e-mail, except where the debtor has withdrawn his or her consent to the use of e-mail and provided a current address for ordinary mail. O. Reg. 460/17, s. 11.

(5) If a debtor states to a collection agency or collector that the debtor has not received the written notice, the collection agency or collector shall resend the notice to the debtor at the address provided by the debtor, and no demand for payment or other attempt to collect payment of the debt shall subsequently be made until the sixth day after the day the notice is resent. O. Reg. 460/17, s. 11.

(6) A collection agency is required to resend the notice under subsection (5) only one time. O. Reg. 460/17, s. 11.

(7) No collection agency shall report a debt to a consumer reporting agency until the time period referenced in subsection (1) or (5) has elapsed, whichever is later. O. Reg. 460/17, s. 11.

(8) Despite subsection (7), a collection agency may report a debt to a consumer reporting agency if it makes at least two attempts, or such greater number of attempts as is reasonable, to locate the debtor’s address to which to send the notice required by subsection (1), and is unable to locate it. O. Reg. 460/17, s. 11.

21.1 (1) Despite subsection 21 (1), if a collection agency does not have a debtor’s identity, home address or e-mail address, it may initiate verbal or text message communication with a person believed to be the debtor before sending the written notice referred to in that subsection solely for the purpose of confirming such information in order to send the written notice. O. Reg. 460/17, s. 11.

(2) If a collection agency initiates verbal or text message communication for the purpose described in subsection (1), it shall, during the communication,

(a) provide the person with only as much detail of the debt to which the communication relates as is required to verify that the person is the subject of the debt;

(b) explain to the person that the details of the debt will be confirmed in a written notice;

(c) explain that the collection agency will contact the person again after the written notice to discuss payment;

(d) provide the person with the contact information of the collector and collection agency; and

(e) if the communication is via text message, inform the person that if the person notifies the collection agency that text messages cause the person to incur costs, the collection agency is prohibited from thereafter contacting or attempting to contact the person using that method of communication, and will reimburse the person for any costs incurred if the person presents evidence of such costs in accordance with subsections 19.10 (2) and (3). O. Reg. 460/17, s. 11.

21.2 Despite subsection 21 (1), a collection agency may discuss a debt with a debtor if the debtor makes an unsolicited request to do so and, in that case, may discuss the debt in greater detail than described in section 21.1. O. Reg. 460/17, s. 11.

21.3 A collection agency that communicates with a debtor by e-mail shall not subsequently refuse to accept communications from the debtor by e-mail. O. Reg. 460/17, s. 11.

21.4 If a person notifies a collection agency or collector that a particular method of communication causes the person to incur costs, or if the collection agency or collector otherwise becomes aware of that fact, the collection agency or collector shall not subsequently contact or attempt to contact the person using that method of communication. O. Reg. 460/17, s. 11.

22. (1) If a debtor sends a collection agency or collector, by verifiable means, including personal service, certified mail, courier, facsimile or e-mail, a notice stating that the debtor disputes the debt and suggests that the matter be taken to court, the collection agency or collector shall not thereafter contact or attempt to contact the debtor, unless the debtor consents to or requests the contact.  O. Reg. 103/06, s. 2; O. Reg. 460/17, s. 12 (1).

(2) If a debtor or his or her lawyer or licensed paralegal sends a collection agency, by verifiable means, including personal service, certified mail, courier, facsimile or e-mail, a notice requesting that the collection agency communicate only with the debtor’s lawyer or licensed paralegal, and setting out the lawyer or licensed paralegal’s address and telephone number, the collection agency or a collector shall not thereafter contact or attempt to contact the debtor other than through the debtor’s lawyer or licensed paralegal unless the debtor consents to or requests the contact. O. Reg. 309/14, s. 9; O. Reg. 460/17, s. 12 (2).

(3) No collection agency or collector shall contact or attempt to contact the debtor’s spouse, a member of the debtor’s family or household, or a relative, neighbour, friend or acquaintance of the debtor unless,

(a) the person being contacted has guaranteed to pay the debt and the contact is in respect of that guarantee;

(b) the debtor has requested the collection agency or collector to discuss the debt with the person being contacted; or

(c) the collection agency or collector does not have the debtor’s home address, personal telephone number or other contact information and the contact is for the sole purpose of obtaining the debtor’s home address, personal telephone number or other contact information.  O. Reg. 103/06, s. 2; O. Reg. 460/17, s. 13.

(4) No collection agency or collector shall contact or attempt to contact the debtor’s employer unless,

(a) the employer has guaranteed to pay the debt and the contact is in respect of that guarantee;

(b) the debtor has given the collection agency or collector written authorization to contact the debtor’s employer;

(c) the contact occurs only once and is for the sole purpose of confirming one or more of the debtor’s employment, the debtor’s business title and the debtor’s business address; or

(d) the contact is in respect of payments pursuant to,

(i) a wage assignment given to a credit union within the meaning of the Credit Unions and Caisses Populaires Act, 1994, or to a caisse populaire within the meaning of that Act, or

(ii) an order or judgment made by a court in favour of the collection agency or collector or of a creditor who is a client of the collection agency or collector.  O. Reg. 103/06, s. 2.

(5) No collection agency or collector shall,

(a) collect or attempt to collect a debt from a person who the collection agency or collector knows or reasonably ought to know is not liable for the debt; or

(b) contact or attempt to contact a person for the purpose of collecting a debt if the person has informed the collection agency or collector that the person is not who the collection agency or collector intends to contact, unless the collection agency or collector first takes all reasonable precautions to ensure that the person is, in fact, who the collection agency or collector intends to contact.  O. Reg. 103/06, s. 2.

(6) No collection agency or collector shall engage in conduct described in any of the following paragraphs with respect to the debtor, the debtor’s spouse, a member of the debtor’s family or household, a relative, neighbour, friend or acquaintance of the debtor, the debtor’s employer, a person who guaranteed the debt or a person mistakenly believed to be the debtor:

1. Make a telephone call or personal call at any of the following times, except at the request of the person being contacted:

i. On a Sunday, other than between the hours of 1 p.m. and 5 p.m. local time of the place where the contact is being made.

ii. On any day of the week other than a Sunday, between the hours of 9 p.m. and 7 a.m. local time of the place where the contact is being made.

iii. Despite subparagraphs i and ii, on any holiday listed in subsection (7).

2. Contact the person more than three times in a seven-day period on behalf of the same creditor, subject to subsections (8) and (9).

3. Publish or threaten to publish the debtor’s failure to pay.

4. Use threatening, profane, intimidating or coercive language.

5. Use undue, excessive or unreasonable pressure.

6. Otherwise communicate in such a manner or with such frequency as to constitute harassment.  O. Reg. 103/06, s. 2.

(7) For the purposes of subparagraph 1 iii of subsection (6), the following days are holidays:

1. New Year’s Day.

1.1 Family Day, being the third Monday in February.

2. Good Friday.

3. Revoked:  O. Reg. 24/08, s. 5.

4. Victoria Day.

5. Canada Day.

6. Civic Holiday.

7. Labour Day.

8. Thanksgiving Day.

9. Revoked:  O. Reg. 24/08, s. 5.

10. Christmas Day.

11. December 26.

12. Any day fixed as a holiday by proclamation of the Governor General or Lieutenant Governor.  O. Reg. 103/06, s. 2; O. Reg. 588/07, s. 1; O. Reg. 24/08, s. 5.

(8) For the purposes of paragraph 2 of subsection (6), the following types of contact shall not be counted:

1. Contact made by ordinary mail.

2. Contact consented to or requested by the person being contacted.

3. Contact of a person other than the debtor where the purpose of the contact is to locate the debtor.  O. Reg. 103/06, s. 2.

(9) The prohibition set out in paragraph 2 of subsection (6) does not apply to a collection agency or collector until such time that the collection agency or collector speaks with the person being contacted either in a telephone call or a personal call, but the prohibition applies thereafter.  O. Reg. 103/06, s. 2.

23. (1) No collection agency or collector shall directly or indirectly threaten, or state an intention, to commence a legal proceeding for the collection of a debt, unless the collection agency or collector has the written authority of the creditor to commence the proceeding, and the proceeding is not otherwise prohibited by law.  O. Reg. 103/06, s. 2.

(2) No collection agency or collector shall recommend to a creditor that a legal proceeding be commenced for collection of a debt, unless the collection agency or collector first gives notice to the debtor of its intention to make the recommendation.  O. Reg. 103/06, s. 2.

(3) No collection agency or collector shall commence a legal proceeding for the collection of a debt,

(a) in the name of the creditor, unless the collection agency or collector has the written authority of the creditor to do so; or

(b) as a plaintiff, unless the following conditions have been satisfied:

(i) The creditor has assigned the debt to the collection agency or collector by written instrument and for valuable consideration, and the creditor has no further interest in the debt.

(ii) If a legal proceeding was commenced by the creditor prior to assigning the debt, the collection agency or collector has given written notice to the debtor of the assignment.

(iii) If a legal proceeding was not commenced by the creditor prior to assigning the debt, the collection agency or collector has given written notice to the debtor of the assignment and, either separately or together with the written notice of assignment, has given notice to the debtor of its intention to commence a legal proceeding.  O. Reg. 103/06, s. 2.

(4) Subsections (1) to (3) do not apply to a collection agency with respect to the collection of a debt owed to itself as a creditor. O. Reg. 460/17, s. 14.

24. No collection agency or collector shall,

(a) give any person, directly or indirectly, by implication or otherwise, any false or misleading information;

(b) misrepresent to any person contacted in respect of the debt the purpose of the contact or the identity of the creditor or of the collection agency or collector; or

(c) use, without lawful authority, any summons, notice, demand or other document that states, suggests or implies that it is authorized or approved by a court in Canada or another jurisdiction.  O. Reg. 103/06, s. 2.

25. (1) Charges incurred by a collection agency or collector in collecting a debt and charges incurred by a creditor to retain a collection agency or collector do not form part of the debt owed by the debtor, and no collection agency or collector shall collect or attempt to collect any such charges, subject to subsection (2).  O. Reg. 103/06, s. 2.

(2) A collection agency or collector may collect, as part of the debt owed by a debtor, all reasonable charges incurred by the collection agency or collector in respect of the debtor’s dishonoured cheques if,

(a) the agreement between the creditor and the debtor provides that the debtor is liable for such charges if incurred by the creditor and sets out the amount of the charge;

(b) the creditor has provided information to the debtor, by any method, that the debtor is liable for such charges if incurred by the creditor and the debtor knows or reasonably ought to know of his or her liability for such charges and the amount of the charge; or

(c) the collection of such charges is expressly permitted by law.  O. Reg. 103/06, s. 2.

Debt Settlement Services Agreements

26. (1) For the purposes of subsection 16.3 (1) of the Act, a collection agency or collector shall not communicate or cause to be communicated the following representations relating to a debt settlement services agreement:

1. A claim that the services are provided on a non-profit or charitable basis, if they are not.

2. A claim that the collection agency’s operations or programs are approved by, or a part of, a program run by the government of Ontario, the government of Canada, or the government of any other jurisdiction outside Ontario, if they are not.

3. Any reference to registration under the Act, other than the collection agency’s registration number under the Act.

4. Any claim of savings or other results for debtors that is not based on typical results.

5. Any claim that misrepresents or exaggerates the services provided under the agreement or the effects or benefits of those services, including but not limited to,

i. a claim that using the services will or may deter the efforts of a creditor or agent of a creditor to collect a debt, and

ii. a claim that using the services will or may prevent legal action or garnishment of the debtor’s wages. O. Reg. 309/14, s. 10; O. Reg. 460/17, s. 15.

(2) For the purposes of paragraph 4 of subsection (1), typical results means the average results obtained by the collection agency, over a period of at least six months and no longer than 12 months in the preceding calendar year, in respect of all debts that were the subject of a debt settlement services agreement during that period. O. Reg. 309/14, s. 10.

(3) A collection agency shall communicate or cause to be communicated the following representations in the circumstances described:

1. If the collection agency has a website, any place on the website that requests a debtor’s personal information shall clearly and prominently display the collection agency’s registered name, principal business address in Ontario, telephone number, fax number, e-mail address and registration number under the Act, set out as “Ontario Registration # [insert registration number]” in English or “No d’inscription en Ontario : [insert registration number]” in French.

2. If an advertisement is made by or on behalf of a collection agency, the advertisement shall clearly and prominently state the collection agency’s registered name and registration number under the Act set out as “Ontario Registration # [insert registration number]” in English or “No d’inscription en Ontario : [insert registration number]” in French. O. Reg. 309/14, s. 10.

27. (1) For the purposes of clause 16.5 (1) (a) of the Act, the following are requirements that a debt settlement services agreement entered into between a collection agency and a debtor is required to meet:

1. For each debt settlement services agreement with a debtor, the collection agency shall indicate which of the following methods of negotiating the settlement of the debtor’s debts the collection agency will pursue:

i. The collection agency will put forward to each of the debtor’s creditors a proposed schedule of payments in respect of each debt.

ii. The collection agency will put forward to each of the debtor’s creditors, on or before a specified date, an offer to settle the debt with a one-time payment that is less than the amount of the debt.

2. If the collection agency proposes to settle a debtor’s debts by the method described in subparagraph 1 i,

i. the agreement shall include the proposed schedule of payments for each debt,

ii. the agreement shall specify that the maximum payment or security for payment that the collection agency may require or accept for services provided under the agreement shall be 15 per cent of every payment made by the debtor to a creditor in respect of a debt to which the agreement applies, and

iii. the first page of the agreement shall be the document entitled “Repaying Debt and Credit Counselling—What You Need to Know” and dated November 24, 2014, which is available on a Government of Ontario website.

3. If the collection agency proposes to settle a debtor’s debts by the method described in subparagraph 1 ii,

i. the agreement shall state for each debt the date on which an offer to settle will be made and the amount of the one-time payment that will be offered,

ii. the agreement shall specify that the maximum payment or security for payment that the collection agency may require or accept for services provided under the agreement shall be 10 per cent of the amount of each debt, at the time the agreement is signed, that is settled through the collection agency, and

iii. the first page of the agreement shall be the document entitled “Settling Debt—What You Need to Know” and dated November 24, 2014, which is available on a Government of Ontario website.

4. Unless a termination provision set out in the agreement provides for an earlier termination date, the agreement terminates 18 months after the later of,

i. the date the agreement was entered into,

ii. the last day on which a payment was made in connection with the agreement, or

iii. if any debts to which the agreement applies are settled by or through the collection agency, the last day on which such a settlement occurred.

5. The agreement shall disclose whether or not the collection agency receives or will attempt to receive funding from a creditor in exchange for entering into a debt settlement services agreement with the debtor.

6. The agreement must include the following information, in addition to the information required under paragraphs 1 to 5:

i. The name, address and telephone number of the debtor.

ii. The collection agency’s registered name, principal business address in Ontario, telephone number, fax number, e-mail address, website address and registration number under the Act, set out as “Ontario Registration # [insert registration number]” in English or “No d’inscription en Ontario : [insert registration number]” in French.

iii. The names of any collectors who negotiated or concluded the agreement with the debtor on behalf of the collection agency.

iv. The date on which the agreement was entered into.

v. The proposed termination date of the agreement, together with the statement that the termination date is subject to the rule specified in paragraph 4.

vi. An itemized list of all services that will be provided under the agreement.

vii. The details of all the debts to which the agreement applies, including each creditor’s name, the total amount owed to each creditor and the interest rate applicable to each debt.

viii. The total amount owed by the debtor to all creditors under the agreement.

ix. Any restrictions, limitations and conditions under the agreement.

x. A statement that the debtor is entitled to receive a written report on the performance of the agreement within 15 days after requesting it.

xi. The date and signature of the debtor, the collection agency and the collector who dealt with the debtor at the time the agreement was signed. O. Reg. 309/14, s. 10; O. Reg. 460/17, s. 16.

(2) A debt settlement services agreement may be amended, whether or not the agreement provides for amendment, by the express agreement of the debtor and collection agency. O. Reg. 309/14, s. 10.

(3) If a debt settlement services agreement is amended, the debtor may, without any reason, cancel the agreement at any time from the date that the amendment is agreed to until 10 days after receiving the written copy of the amended agreement, and subsections 16.7 (3), (4) and (5) of the Act apply to the cancellation. O. Reg. 309/14, s. 10.

(4) No amendment of a debt settlement services agreement is effective unless the amendment and the amended agreement meet all the requirements in the Act and this Regulation. O. Reg. 309/14, s. 10.

(5) An amendment to a debt settlement services agreement does not retroactively affect rights and obligations acquired by the debtor before the effective date of the amendment, and does not affect any debt that has already been settled under the agreement. O. Reg. 309/14, s. 10.

28. (1) A collection agency shall not require or accept any payment or security for payment for its services in respect of a debt owed by a debtor to a creditor until,

(a) the debtor has entered into an agreement with the creditor regarding the amount to be paid by the debtor to the creditor to settle the debt;

(b) the debtor has made at least one payment under an agreement mentioned in clause (a); and

(c) the collection agency has written evidence of the debtor’s payment mentioned in clause (b). O. Reg. 309/14, s. 10.

(2) If a collection agency provides debt settlement services to a debtor in respect of more than one creditor, the collection agency shall not require or accept payment or security for payment for its services in respect of any given creditor until the conditions mentioned in subsection (1) have been met in respect of the creditor. O. Reg. 309/14, s. 10.

(3) The amount that a collection agency may require or accept from a debtor as payment or security for payment for its services in respect of the debt owed to a creditor shall not exceed,

A × B/C

where,

A is the total amount that the collection agency may require or accept for its services in respect of all debts owed to all creditors, as set out in the debt settlement services agreement,

B is the amount of debt owed to the creditor,

C is the total amount of debt owed to all of the debtor’s creditors. O. Reg. 309/14, s. 10.

(4) A collection agency that proposes to negotiate settlement of a debtor’s debts using the method described in subparagraph 1 i of subsection 27 (1) may also charge a one-time fee of no more than $50, which may be charged before the conditions mentioned in subsection (1) have been met in respect of a creditor. O. Reg. 309/14, s. 10.

(5) A collection agency may charge a debtor a fee for a dishonoured cheque, but the fee shall not be greater than the actual amount charged to the collection agency in respect of the cheque by the financial institution that dishonoured the cheque. O. Reg. 309/14, s. 10.

(6) A collection agency that receives a notice demanding a refund under subsection 16.6 (5) or 16.8 (1) of the Act shall provide the refund within 15 days after receiving the notice. O. Reg. 309/14, s. 10; O. Reg. 460/17, s. 17.

29. No collection agency or collector shall engage in any of the following practices or employ any of the following methods in providing debt settlement services to a debtor or in respect of a debt settlement services agreement with a debtor:

1. Restrict the debtor from having access to his or her consumer report, or make any oral or written representation suggesting that the debtor is restricted from having such access.

2. Restrict the debtor from communicating with his or her creditors.

3. Revoked: O. Reg. 460/17, s. 18.

4. Fail to give a written report to the debtor on the performance of the agreement within 15 days after requesting it.

5. Offer or pay any compensation to a debtor in exchange for the debtor entering into a debt settlement services agreement.

6. Directly or indirectly require or accept any money for assisting a debtor to obtain an extension of credit other than an extension of time for the debtor to repay a debt.

7. Fail to inform a debtor’s creditors that the collection agency or collector is authorized to arrange or negotiate a schedule of payments or a one-time payment on the debtor’s behalf, within 15 days of becoming authorized.

8. Fail to inform a debtor of a refusal by a creditor to negotiate a schedule of payments or a one-time payment, within 15 days of the refusal.

9. Communicate information about a debtor’s debts to any person except the debtor, a guarantor of the debt, the debtor’s representative or a creditor of the debtor without the debtor’s written consent.

10. Fail to provide information as to how to contact the collection agency or collector during normal business hours.

11. Fail to respond to a debtor’s communications within a reasonable time.

12. Obtain a debtor’s contact information from a third party unless the third party named the collection agency or collector that would receive the information and the debtor explicitly consented to the contact information being shared with the collection agency or collector.

13. Misrepresent the time needed to achieve the results promised by the collection agency or collector.

14. Enter into a debt settlement services agreement with a debtor if it is apparent that the debtor’s creditors would not enter into an agreement to settle the debt.

15. Enter into a debt settlement services agreement with a debtor if it is apparent that the debtor is not able to protect his or her interests because of disability, illiteracy or inability to understand the agreement or similar factors.

16. Give any person false or misleading information. O. Reg. 309/14, s. 10; O. Reg. 460/17, s. 18.

30. (1) A collection agency that provides debt settlement services shall keep on its premises the following records for every debt settlement services agreement with a debtor, whether the record was created by the collection agency or created by a third party and used by the collection agency:

1. A copy of the agreement.

2. Any receipts issued and disbursements made by the collection agency or collector on behalf of the debtor.

3. Copies of all correspondence relating to the debt settlement services provided by the collection agency or collector, including letters, e-mails and faxes to or from the debtor, any guarantor of the debtor’s debt, the debtor’s representative or the debtor’s creditors.

4. Records relating to any negotiation of debt repayments to creditors by the collection agency or collector.

5. Any other records created or used while dealing with the debtor, the debtor’s representative or the debtor’s creditors. O. Reg. 309/14, s. 10; O. Reg. 460/17, s. 19 (1).

(2) A collection agency that provides debt settlement services shall keep on its premises copies of all published advertisements and the records needed to support claims or statements made in the advertisements. O. Reg. 309/14, s. 10; O. Reg. 460/17, s. 19 (2).

(3) Records required under subsection (1) or (2) shall be kept for six years after the last payment made in connection with the debt settlement services agreement, or the date of the last advertisement, as the case may be. O. Reg. 309/14, s. 10.

(4) A collection agency shall provide to the Registrar a copy of any record mentioned in subsection (1) or (2) upon the Registrar’s request, within the time specified by the Registrar. O. Reg. 309/14, s. 10; O. Reg. 460/17, s. 19 (3).

Note: On January 1, 2019, the Regulation is amended by adding the following sections: (See: O. Reg. 319/18, s. 2)

Call Recording

31. (1) A collection agency that employs or appoints 10 or more collectors or authorizes 10 or more collectors to act shall record all phone calls that are made or received by the agency or by such a collector if the calls relate to the collection of a debt of a debtor but are not with a creditor of the debt, including such phone calls if they are,

(a) made or received by any means, including over regular phone lines, over cell phone lines or through the internet;

(b) made for the purpose described in subsection 21.1 (1); or

(c) made to or received from,

(i) the debtor or a person who the caller believes is the debtor,

(ii) the spouse or common law partner of the debtor or a person who the caller believes is the debtor,

(iii) a member of the family or household of the debtor or a person who the caller believes is the debtor,

(iv) a relative, neighbour, friend or acquaintance of the debtor or a person who the caller believes is the debtor,

(v) the employer of the debtor or a person who the caller believes is the debtor, and

(vi) a person who guaranteed the debt. O. Reg. 319/18, s. 2.

(2) The recording required by subsection (1) shall be made in a format that is readily accessible. O. Reg. 319/18, s. 2.

(3) A collection agency that records a phone call as required by subsection (1) may block, remove, redact or otherwise anonymize the number that identifies a credit card, a bank account or any other financial account of an individual and that is conveyed on the recording. O. Reg. 319/18, s. 2.

(4) The collection agency or collector that makes or receives a phone call described in subsection (1) shall advise the person to whom the call is made or from whom a phone call is received that the call is being recorded to comply with this Act. O. Reg. 319/18, s. 2.

(5) The collection agency shall retain the recording that it makes of a phone call as required by subsection (1) for one year after the day the call is made or received. O. Reg. 319/18, s. 2.

(6) A person who makes or receives a phone call that a collection agency records as required by subsection (1) may request a copy of the recording by making a written request for it to the agency. O. Reg. 319/18, s. 2.

(7) Within 10 days of receiving a request made under subsection (6), the collection agency shall, at no charge, send a copy of the recording to the person at the address that the person gives to the agency, or to the person by electronic means if the person so requests. O. Reg. 319/18, s. 2.

(8) The Registrar may request a copy or copies of a recording of a phone call that a collection agency is required to make under subsection (1). O. Reg. 319/18, s. 2.

(9) The collection agency shall provide the copy or copies to the Registrar within 10 days of the date on which the Registrar requests them and in the manner that that the Registrar specifies. O. Reg. 319/18, s. 2.

32. Section 31 does not apply to phone calls made or received by a person or entity that is a credit counselling agency or consumer counselling agency in its provision of debt settlement services. O. Reg. 319/18, s. 2.

Note: On July 1, 2018, the Regulation is amended by adding the following section: (See: O. Reg. 319/18, s. 3 (1))

Administrative Penalties

33. The following provisions are the prescribed provisions for the purposes of subsection 29.0.1 (1) of the Act:

1. Subsection 4 (2) of the Act.

2. Clauses 16.5 (1) (a) and (b) of the Act.

3. Subsections 16.5 (2) and (4) of the Act.

4. Subsection 16.6 (1) of the Act, together with section 28 of this Regulation.

5. Subsection 16.6 (6) of the Act, together with subsection 28 (6) of this Regulation.

6. Subsection 20 (1) of the Act.

7. Subsections 13 (3), (10), (12), (12.1), (13), (14), (14.1) and (15) of this Regulation.

8. Subsections 17 (2), (3), (4), (4.1), (4.3) and (4.4) of this Regulation.

9. Subsections 18 (2), 19.1.1 (3) and 21 (1) of this Regulation.

10. Subsections 22 (1) and (2) and paragraphs 1, 2 and 3 of subsection 22 (6) of this Regulation.

11. Subsections 23 (1) and 25 (1) and (2) of this Regulation.

12. Paragraphs 1, 2 and 3 of subsection 26 (1) of this Regulation.

13. Subsections 27 (1) and 28 (1) of this Regulation.

14. Paragraphs 1, 4 and 10 of section 29 of this Regulation.

15. Subsections 30 (1), (2) and (3) of this Regulation. O. Reg. 319/18, s. 3 (1).

Note: On January 1, 2019, section 33 of the Regulation is amended by adding the following paragraph: (See: O. Reg. 319/18, s. 3 (2))

16. Subsections 31 (1), (2), (4), (5), (7) and (9) of this Regulation.

FormS 1-3 Revoked: O. Reg. 309/14, s. 11.

 

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