O. Reg. 103/06: GENERAL, COLLECTION AGENCIES ACT

 

ontario regulation 103/06

made under the

collection agencies act

Made: March 29, 2006
Filed: March 31, 2006
Published on e-Laws: April 3, 2006
Printed in The Ontario Gazette: April 15, 2006

Amending Reg. 74 of R.R.O. 1990

(General)

1. (1) Clause 2 (5) (a) of Regulation 74 of the Revised Regulations of Ontario, 1990 is revoked and the following substituted:

(a) the bond of an insurer licensed under the Insurance Act to write surety and fidelity insurance;

(2) Clause 2 (5) (c) of the Regulation is revoked and the following substituted:

(c) the bond of a guarantor, other than an insurer licensed under the Insurance Act to write surety and fidelity insurance, accompanied by collateral security.

(3) Subsection 2 (8) of the Regulation is amended by striking out “subsection (2)” and substituting “subsection (5)”.

2. Sections 19.2, 20 and 21 of the Regulation are revoked and the following substituted:

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.

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.

(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).

(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.

(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.

22. (1) If a debtor sends a collection agency or collector, by registered mail, a letter 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.

(2) If a debtor or his or her lawyer sends a collection agency or collector, by registered mail, a letter requesting that the collection agency or collector communicate only with the debtor’s lawyer and setting out the lawyer’s address and telephone number, the collection agency or collector shall not thereafter contact or attempt to contact the debtor other than through the debtor’s lawyer, unless the debtor consents to or requests the contact.

(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 or home telephone number and the contact is for the sole purpose of obtaining the debtor’s home address or home telephone number.

(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.

(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.

(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.

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

1. New Year’s Day.

2. Good Friday.

3. Easter Monday.

4. Victoria Day.

5. Canada Day.

6. Civic Holiday.

7. Labour Day.

8. Thanksgiving Day.

9. Remembrance Day.

10. Christmas Day.

11. December 26.

12. Any day fixed as a holiday by proclamation of the Governor General or Lieutenant Governor.

(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.

(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.

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.

(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.

(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.

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.

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).

(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.

3. (1) The title to Form 1 of the Regulation is revoked and the following substituted:

form 1
Bond of an insurer licensed under the insurance act to write surety and fidelity insurance

Collection Agencies Act

(2) The title to Form 2 of the Regulation is revoked and the following substituted:

form 2
Bond of a guarantor other than an insurer licensed under the insurance act to write surety and fidelity insurance

Collection Agencies Act

4. This Regulation comes into force on June 1, 2006.