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ontario regulation 460/17

made under the

Collection and Debt Settlement Services Act

Made: November 22, 2017
Filed: November 29, 2017
Published on e-Laws: November 29, 2017
Printed in The Ontario Gazette: December 16, 2017

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

(GENERAL)

1. (1) Subsection 1 (2) of Regulation 74 of the Revised Regulations of Ontario, 1990 is revoked.

(2) Subsection 1 (3) of the Regulation is amended by striking out “or by a collector under subsection 20 (2) of the Act”.

(3) Subsection 1 (5) of the Regulation is revoked and the following substituted:

(5) When notified by the Registrar, the applicant shall file any fee established by the Minister.

2. Sections 2 to 12 of the Regulation are revoked and the following substituted:

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.

(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.

3. The Regulation is amended by striking out the heading “Terms and Conditions of Registration” before section 13.

4. (1) Subsection 13 (1) of the Regulation is amended by striking out “the appropriate fee prescribed in section 11” and substituting “the fee established by the Minister”.

(2) Subsections 13 (8) and (9) of the Regulation are revoked.

(3)  Section 13 of the Regulation is amended by adding the following subsections:

(10.1)  Every collection agency shall maintain a working toll-free telephone number.

(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.

(4) Section 13 of the Regulation is amended by adding the following subsection:

(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.

(5) Subsections 13 (14), (15) and (16) of the Regulation are revoked and the following substituted:

(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.

(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.

(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.

(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.

5. (1) Section 17 of the Regulation is amended by adding the following subsections:

(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.

. . . . .

(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.

(2) Subsection 17 (4) of the Regulation is revoked and the following substituted:

(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.

(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).

(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.

(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.

(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.

6. (1) Subsection 18 (1) of the Regulation is amended by adding “with respect to the debt the money is collected on” after “such collection agency”.

(2) Section 18 of the Regulation is amended by adding the following subsection:

(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.

7. Section 19 of the Regulation is revoked.

8. (1) Subsection 19.1 (1) of the Regulation is revoked.

(2) Subsection 19.1 (2) of the Regulation is amended by striking out “Section 11 does not” at the beginning and substituting “Fees established by the Minister do not”.

9. Subsection 19.1.1 (2) of the Regulation is amended by striking out “or collector” wherever it appears.

10. (1) The Regulation is amended by adding the following sections before the heading “Prohibited Practices and Methods in the Collection of Debts”:

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.

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.

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.

(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.

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.

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.

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.

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.

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.

(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.

(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.

(2) The Regulation is amended by adding the following section before the heading “Prohibited Practices and Methods in the Collection of Debts”:

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.

11. Section 21 of the Regulation is revoked and the following substituted:

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.

(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.

(3) Despite subsection (1), a written demand for payment may be included with the written notice.

(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.

(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.

(6) A collection agency is required to resend the notice under subsection (5) only one time.

(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.

(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.

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.

(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).

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

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.

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.

12. (1) Subsection 22 (1) of the Regulation is amended by striking out “by registered mail, a letter” and substituting “by verifiable means, including personal service, certified mail, courier, facsimile or e-mail, a notice”.

(2) Subsection 22 (2) of the Regulation is amended by striking out “by registered mail, a letter” and substituting “by verifiable means, including personal service, certified mail, courier, facsimile or e-mail, a notice”.

13. Clause 22 (3) (c) of the Regulation is revoked and the following substituted:

(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.

14. Section 23 of the Regulation is amended by adding the following subsection:

(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.

15. Paragraph 3 of subsection 26 (1) of the Regulation is amended by striking out “or collector’s”.

16. Subparagraph 6 iii of subsection 27 (1) of the Regulation is revoked and the following substituted:

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

17. Subsection 28 (6) of the Regulation is amended by adding “or 16.8 (1)” after “16.6 (5)”.

18. Paragraph 3 of section 29 of the Regulation is revoked.

19. (1) Subsection 30 (1) of the Regulation is amended by striking out “or collector” wherever it appears in the portion before paragraph 1.

(2) Subsection 30 (2) of the Regulation is amended by striking out “or collector”.

(3) Subsection 30 (4) of the Regulation is amended by striking out “or collector”.

Commencement

20. (1) Subject to subsection (2), this Regulation comes into force on the later of the day it is filed and January 1, 2018.

(2) Subsection 5 (2) and section 11 come into force on the later of the day it is filed and July 1, 2018.

(3) Subsection 10 (2) comes into force on the later of the day it is filed and the day subsection 12 (1) of Schedule 2 of the Putting Consumers First Act (Consumer Protection Statute Law Amendment), 2017 comes into force.

 

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