2013-c.30 Financial and Consumer Services Commission Act N.B.

The body corporate previously constituted under the name New Brunswick Securities Commission is continued as a body corporate without share capital under the name Financial and Consumer Services Commission.

The change of the name of the Commission does not affect the rights and obligations of the Commission, and all proceedings may be continued or commenced by and against the Commission under its new name that might have been continued or commenced by or against the Commission under its former name.

The Commission shall consist of a chair and the number of other members the Commission recommends, which shall not be less than five nor more than ten.

The Commission is, for all purposes, an agent of the Crown in right of the Province.

Subject to this Act, the Commission has the capacity, rights, powers and privileges of a natural person.

The members of the Commission, including the chair, shall be appointed by the Lieutenant-Governor in Council for a term not exceeding five years and, subject to subsections (2) and (3), may be reappointed.

Subject to subsection (3), a person is not eligible to serve as a member of the Commission for more than ten years.

If a member of the Commission is appointed the chair of the Commission, the person is eligible to be appointed as chair for a term not exceeding five years regardless of how many years the person served as a member prior to their appointment as chair.

Despite subsections (2) and (3) and subject to section 9, a member of the Commission remains in office after the expiry of their term until the member resigns or is reappointed or replaced.

Despite subsections (2) and (3) and subject to section 9, a member of the Commission who held office immediately before the commencement of this subsection, other than the chair, continues in office until the member resigns or is reappointed or replaced.

Despite subsections 6(2) and (3) and subject to section 9, the Chair of the New Brunswick Securities Commission who held office immediately before the commencement of this section shall continue as chair of the Commission until the person resigns or is reappointed or replaced, but the person shall not continue as the Chief Executive Officer of the Commission on the commencement of this section.

Repealed: 2014, c.53, s.1

Repealed: 2014, c.53, s.1

The chair and other members of the Commission are entitled to be paid the remuneration fixed in accordance with the by-laws of the Commission.

A member of the Commission is entitled to be paid those travelling, living and other expenses reasonably incurred by the member in the performance of their duties that are fixed in accordance with the by-laws of the Commission.

A by-law of the Commission respecting the remuneration of its chair and other members is effective only if it has been approved by the Minister.

If a vacancy occurs on the Commission, the Lieutenant-Governor in Council may appoint a person to fill the vacancy for the balance of the term of the chair or other member of the Commission replaced.

In the case of the temporary absence, illness or incapacity to act of any member of the Commission, other than the chair, the Lieutenant-Governor in Council may appoint a substitute for the member for the period of the temporary absence, illness or incapacity.

In the case of the temporary absence, illness or incapacity to act of the chair of the Commission, the powers and duties of the chair shall be exercised by a member of the Commission designated by resolution of the Commission.

A vacancy on the Commission does not impair the capacity of the Commission to act so long as a quorum is maintained.

The Commission may do the following:

The Commission shall do the following:

For the purposes of administering financial and consumer services legislation or assisting in the administration of similar legislation of another jurisdiction, the Commission or any employee of the Commission may receive, directly or indirectly, information from any person.

Despite any other Act and subject to section 14, information received by the Commission or an employee of the Commission under subsection (1) is confidential and shall not be disclosed to any other person unless the disclosure is authorized

For the purposes of administering financial and consumer services legislation and subject to an order of the Tribunal, a regulator or any other employee of the Commission may disclose any information to another regulator or any other employee of the Commission.

For the purposes of administering financial and consumer services legislation or assisting in the administration of similar legislation of another jurisdiction and subject to an order of the Tribunal, the Commission or a regulator may disclose any information to any of the following persons:

Subject to an order under subsection 14(3) or (4), if, in the opinion of the Commission, the disclosure of information is not prejudicial to the public interest and is required for the protection of the public, the Commission may do any of the following:

Subject to subsections (2) and (3), all information or material required to be filed under financial and consumer services legislation with the Commission or a regulator shall be made available for public inspection at the Commission offices during the normal business hours of the Commission and may be published by the Commission.

The Commission or a regulator may hold information or material or any class of information or material referred to in subsection (1) in confidence if the Commission or the regulator is of the opinion the information or material discloses intimate financial, personal or other information and the desirability of avoiding disclosure of the information in the interests of an affected person outweighs the desirability of adhering to the principle that information and material filed with the Commission or the regulator be available to the public.

On the application of an interested person or the Commission and after giving the applicant an opportunity to be heard, the Tribunal may order that information or a class of information or material or a class of materials referred to in subsection (1) be held in confidence if the Tribunal is of the opinion the information or material discloses intimate financial, personal or other information and the desirability of avoiding disclosure of the information in the interests of an affected person outweighs the desirability of adhering to the principle that information and material filed with the Commission or the regulator be available to the public.

A person affected by a decision under subsection (2) to hold information in confidence may appeal the decision to the Tribunal, and the Tribunal, by order, may confirm, vary or rescind the decision.

An appeal under subsection (4) shall be made within 30 days after the date of the decision.

Despite subsection (4.1), the Tribunal may extend the period for appealing a decision, before or after the expiration of the time, if it is satisfied that there are reasonable grounds for an extension.

A decision of the Tribunal under subsection (3) or (4) is final and, despite subsection 48(1), is not subject to appeal.

Subject to subsection (3), the Commission may delegate in writing any of its powers or duties to the following persons:

In a written delegation under subsection (1), the Commission

The Commission shall not delegate the power to make rules under financial and consumer services legislation.

A delegate or subdelegate to whom this section applies shall comply with the terms and conditions imposed in the Commission’s written delegation.

A subdelegate to whom this section applies shall comply with the terms and conditions imposed on the subdelegate by the delegate.

A decision, ruling, order, temporary order or direction made by a person under a written delegation or subdelegation made under this section shall be deemed to be a decision, ruling, order, temporary order or direction of the Commission.

The Commission may establish advisory committees.

A committee shall consist of those members appointed by the Commission.

The Commission may designate a member of the committee as its chair.

A committee shall meet when requested by the Commission.

When requested by the Commission, a committee shall consult with and advise the Commission concerning administrative, regulatory and legislative matters relating to financial and consumer services.

A member of a committee shall serve without salary, but the Commission, in accordance with its by-laws, may establish an allowance that is payable to each member.

A member of a committee is entitled to be paid those travelling, living and other expenses reasonably incurred by the member in the performance of their duties that are fixed in accordance with the by-laws of the Commission.

The Commission may employ or engage those persons it considers necessary for the administration of financial and consumer services legislation.

The Commission shall appoint from among its employees the following persons:

Under the general supervision of the Commission, a person appointed under subsection (2) shall exercise the powers and perform the duties imposed on the person by financial and consumer services legislation or the Commission or delegated to the person under section 15 or any other Act.

In the case of the temporary absence, illness or incapacity to act of a person appointed under subsection (2), the powers and duties of that person shall be exercised by an employee of the Commission designated by the Commission.

The remuneration and other conditions of employment of the employees of the Commission shall be established in accordance with the by-laws of the Commission.

The pension plan converted to a shared risk plan in accordance with An Act Respecting Public Service Pensions applies to employees of the Commission.

Subject to the approval of the Commission, employees of the Commission are eligible to participate in any employee benefit program established by the Treasury Board.

The Secretary of the Commission may do any of the following:

A certificate purporting to be signed by the Secretary of the Commission is, without proof of the Secretary’s appointment, authority or signature, admissible in evidence and is, in the absence of evidence to the contrary, proof of the facts stated in the certificate.

A certificate referred to in subsection (2) shall not be received in evidence unless the party intending to produce it has given to the person against whom it is to be produced reasonable notice of the party’s intention, together with a copy of the certificate.

With leave of the court, a person against whom a certificate referred to in subsection (2) is produced may require the attendance of the person who signed the certificate for purposes of cross-examination.

The Commission shall maintain in its own name one or more accounts in a bank, trust company or credit union designated by the Minister for the purposes of subsection 17(1) of the Financial Administration Act.

Despite the Financial Administration Act, all money received by the Commission through the conduct of its operations or otherwise shall be deposited to the credit of the account or accounts maintained under subsection (1) and shall be administered by the Commission exclusively for the purposes of financial and consumer services legislation.

With the approval of the Minister, the Commission may borrow money for the purposes of carrying on its activities.

The Commission may invest money in any kind of property, real, personal or mixed, for the purposes of carrying on its activities and in doing so shall exercise the judgment and care that a person of prudence, discretion and intelligence would exercise as a trustee of the property of others.

For the purposes of subsection (2), amounts received by the Commission from administrative penalties under financial and consumer services legislation shall not be used for the normal operating expenditures of the Commission and shall be used only for endeavours or activities that, in the opinion of the Commission, enhance or may enhance the financial market place or consumer protection.

For the purposes of subsection (2), amounts disgorged to the Commission under any of the following statutory provisions shall not be used for the normal operating expenditures of the Commission and shall be used only in accordance with the rules made under paragraph 59(1)(b.1) or the regulations or rules made under the statute in question:

When ordered to do so by the Minister, the Commission shall pay into the Consolidated Fund such of its surplus funds as, subject to the approval of the Treasury Board, are determined by the Minister.

In determining the amount of a payment to be made under subsection (7), the Minister shall allow those reserves for the future needs of the Commission that the Minister considers appropriate and shall ensure that the payment will not impair the Commission’s ability to pay its liabilities, to meet its obligations as they become due or to fulfil its contractual commitments.

Before February 28 of each year, the Commission shall prepare and submit to the Treasury Board a proposed budget containing the estimates of the amounts required for the operation of the Commission for the next fiscal year.

The Secretary to Treasury Board may make a report on the proposed budget, containing any recommendations that the Secretary considers appropriate, to the chair of the Commission within 30 days after receiving the proposed budget.

The Commission shall promptly give the Minister any information about its activities, operations and financial affairs that the Minister requests.

The Minister may designate a person to examine any financial or accounting procedures, activities or practices of the Commission, and the person designated shall do so and report the results of the examination to the Minister.

The members and employees of the Commission shall give the person designated by the Minister all the assistance and cooperation necessary to enable the person to complete the examination.

The fiscal year of the Commission ends on March 31 of each year.

Within six months after the end of the Commission’s fiscal year, the Commission, in accordance with generally accepted accounting principles, shall prepare annual financial statements that present the financial position, financial performance and changes in the financial position of the Commission for its most recent fiscal year.

Within six months after the end of the Commission’s fiscal year, the Commission shall prepare and deliver to the Minister a report consisting of the following information:

If the Legislature is in session when a report is received by the Minister under subsection (1), the Minister shall lay the report before the Legislative Assembly without delay.

If the Legislature is not in session when a report is received by the Minister under subsection (1), the Minister shall lay the report before the Legislative Assembly within 15 days after the commencement of the next session.

A regulator shall be recognized by the Tribunal as an expert with respect to any decision made by the regulator under financial and consumer services legislation.

When a decision made by a regulator is subject to a review by the Tribunal or an appeal to the Tribunal, the Tribunal may do the following:

When a decision is referred back to the regulator under subparagraph (2)(b)(ii), the regulator shall reconsider and confirm, vary or set aside the decision as the regulator considers appropriate.

When a matter is referred back to the regulator under subparagraph (2)(b)(iii), the regulator shall rehear the matter and confirm, vary or set aside the decision as the regulator considers proper.

With leave of a judge of the Court of Appeal, the Commission or a person directly affected by a final decision of the Tribunal may appeal the decision to the Court of Appeal.

An application for leave to appeal shall be made within 30 days after the later of the making of the decision and the issuing of the reasons for the decision.

Within the 30-day period referred to in subsection (2), a copy of the application for leave to appeal and supporting documents shall be

Despite the fact that the application for leave to appeal is made under this section, the decision appealed from takes effect immediately, but the Tribunal or the Court of Appeal may grant a stay of the decision until disposition of the appeal.

The Tribunal shall certify to the Court of Appeal the following documents:

The Minister is entitled to be heard on the argument of an appeal under this section, regardless of whether the Minister is named as a party to the appeal.

If an appeal is taken under this section, the Court of Appeal may order the Commission, the Tribunal or a regulator to make a decision or to take any other action that the Commission, the Tribunal or the regulator, as the case may be, is authorized and empowered to take under financial and consumer services legislation or under the Energy and Utilities Board Act, as the case may be, and that the Court of Appeal considers proper, having regard to the material and submissions before it and to financial and consumer services legislation and to the Energy and Utilities Board Act, and the Commission, the Tribunal or the regulator, as the case may be, shall make that decision or take that action accordingly.

To the extent that they are not inconsistent with this section, the Rules of Court apply to an appeal under this section.

Despite an order of the Court of Appeal on an appeal, the Tribunal may make a further decision on new material or if there is a significant change in the circumstances, and that decision is subject to this section.

No action or other proceeding may be brought against any of the following persons for anything done or not done, or for any neglect, in the performance or exercise, or the intended performance or exercise, in good faith of a power or duty under the authority of financial and consumer services legislation:

A provision in financial and consumer services legislation immunizing any person from an action or other proceeding for anything done or not done, or for any neglect, in the performance or exercise, or the intended performance or exercise, in good faith of a power or duty under the authority of that Act, which was valid and of full force and effect immediately before the commencement of this section, despite its repeal on the commencement of this section, continues to be valid and of full force and effect with respect to anything done or not done, or any neglect, which occurred before the commencement of this section.

Except in relation to an action by or on behalf of the Commission, in which case the approval of the Court of King’s Bench must first be obtained, the Commission may indemnify the chair or a former chair of the Commission or the board of directors of the New Brunswick Credit Union Deposit Insurance Corporation, a member or former member of the Commission or the board of directors of the New Brunswick Credit Union Deposit Insurance Corporation or an employee or former employee of the Commission or the New Brunswick Credit Union Deposit Insurance Corporation, and their heirs and legal representatives, against all costs, charges and expenses, including an amount paid to settle an action or satisfy a judgment, reasonably incurred by the person in relation to a civil, criminal or administrative action or proceeding to which the person is made a party by reason of being or having been the chair of the Commission or the board of directors of the New Brunswick Credit Union Deposit Insurance Corporation, a member of the Commission or the board of directors of the New Brunswick Credit Union Deposit Insurance Corporation or an employee of the Commission or the New Brunswick Credit Union Deposit Insurance Corporation, if he or she

Despite anything in this section, a person referred to in subsection (1) is entitled to indemnity from the Commission in respect of all costs, charges and expenses reasonably incurred in connection with the defence of any civil, criminal or administrative action or proceeding to which the person is made a party by reason of being or having been the chair of the Commission or the board of directors of the New Brunswick Credit Union Deposit Insurance Corporation, a member of the Commission or the board of directors of the New Brunswick Credit Union Deposit Insurance Corporation or an employee of the Commission or the New Brunswick Credit Union Deposit Insurance Corporation if the person seeking indemnity

The Commission may purchase and maintain insurance for the benefit of a person referred to in subsection (1) against any liability incurred by that person as the chair of the Commission or the board of directors of the New Brunswick Credit Union Deposit Insurance Corporation, as a member of the Commission or the board of directors of the New Brunswick Credit Union Deposit Insurance Corporation or as an employee of the Commission or the New Brunswick Credit Union Deposit Insurance Corporation, except if the liability relates to the failure of that person to act honestly and in good faith with a view to the best interests of the Commission.

The Commission, or a person referred to in subsection (1), may apply to the Court of King’s Bench for an order approving an indemnity under this section, and the Court of King’s Bench may so order and make any further order it considers appropriate.

On an application under subsection (4), the Court of King’s Bench may order notice to be given to any interested person, and that person is entitled to appear and be heard in person or by legal counsel.

Unless otherwise provided by financial and consumer services legislation, any information or material that under financial and consumer services legislation is required to be sent to a person may be

Unless otherwise provided by financial and consumer services legislation, any information or material that under financial and consumer services legislation is required to be served on a person shall be served on the person in the manner in which personal service may be made under the Rules of Court.

Information or material sent to a person under paragraph (1)(b) or (c) shall be sent to the person

Information or material shall be deemed to have been personally served on the Commission if it is deposited at an office of the Commission during the normal business hours of the Commission.

Information or material sent in accordance with paragraph (1)(b) shall be deemed to have been received by the person to whom it was sent

The Commission may file a certified copy of a decision of the Tribunal with the clerk of The Court of King’s Bench, and, on being filed, the decision has the same force and effect as if it were a judgment of The Court of King’s Bench.

If an order of the Tribunal is filed under subsection (1), any amounts required to be disgorged to the Commission or the administrative penalty required to be paid to the Commission under the order may be collected as a judgment of The Court of King’s Bench for the recovery of a debt.

The Commission may issue policy statements, and other instruments the Commission considers advisable, to facilitate the exercise of its powers and the performance of its duties under financial and consumer services legislation.

The Regulations Act does not apply to a policy statement or other instrument referred to in subsection (1).

No agreement, memorandum of understanding or arrangement entered into by the Commission shall come into effect without the approval of the Minister.

If the Minister approves an agreement, memorandum of understanding or arrangement referred to in subsection (1), it comes into effect on the date specified in the agreement, memorandum of understanding or arrangement and, if no date is specified, on the date that the Minister approves it.

This section does not apply to the following documents:

The Commission may make by-laws governing the administration, management and conduct of its affairs, including, but not limited to, the following:

A by-law made by the Commission becomes effective on the date determined by resolution of the Commission.

Despite subsection (2), a by-law of the Commission with respect to the remuneration of the members of the Commission or the board of directors of the New Brunswick Credit Union Deposit Insurance Corporation is not effective until it is approved in writing by the Minister.

As soon as practicable after a by-law made by the Commission becomes effective, the Commission shall publish the by-law electronically and publish notice of the by-law in The Royal Gazette.

The Regulations Act does not apply to by-laws made by the Commission.

Repealed: 2023, c.6, s.1

Repealed: 2023, c.6, s.1

The chair and other members of the board of directors of the New Brunswick Credit Union Deposit Insurance Corporation are entitled to be paid the remuneration fixed in accordance with the by-laws of the Commission.

The chair and other members of the board of directors of the New Brunswick Credit Union Deposit Insurance Corporation are entitled to be paid those travelling, living and other expenses reasonably incurred by them in the performance of their duties that are fixed in accordance with the by-laws of the Commission.

A by-law referred to in subsection (1) is effective only if it has been approved by the Minister.

Despite any other Act, the Commission may make rules

In financial and consumer services legislation, a reference to “regulation” includes a reference to a rule made under subsection (1) unless the context otherwise requires.

Repealed: 2017, c.48, s.8

The Lieutenant-Governor in Council may, by order, amend or repeal a rule made by the Commission.

Subject to the approval of the Minister, the Commission, concurrently with making a rule, may make a regulation that amends or repeals a provision of a regulation made by the Lieutenant-Governor in Council under financial and consumer services legislation or by the Commission under this subsection that in the opinion of the Commission is necessary or advisable to effectively implement the rule.

A regulation made under subsection (5) is not effective before the rule referred to in that subsection comes into force.

Subject to subsection (6), a regulation made under subsection (5) may be retroactive in its operation.

The Regulations Act does not apply to the rules made under this Act.

If there is a conflict or an inconsistency between a regulation made by the Lieutenant-Governor in Council under this or any Act and a rule made under this Act, the regulation prevails, but in all other respects a rule has the same effect as a regulation.

When a rule is made under section 59, as soon as practicable after the rule is made, the Commission shall

Without delay after the Commission makes a rule, it shall make a copy of the rule available for public inspection at each of the Commission’s offices during the normal business hours of the Commission.

When notice of a rule has been published in The Royal Gazette in accordance with paragraph (1)(b), a person affected by the rule shall be deemed to have notice of it on the date the rule is published in accordance with paragraph (1)(a).

The Secretary of the Commission may maintain a consolidation of the rules made by the Commission.

In maintaining a consolidation of the rules, the Secretary of the Commission may make changes respecting form and style and respecting typographical errors without changing the substance of a rule.

The Commission may publish the consolidated rules in the frequency that it considers appropriate.

A consolidated rule does not operate as new law but shall be interpreted as a consolidation of the law contained in the original rule and any subsequent amendments.

In the event of an inconsistency between a consolidated rule published by the Commission and the original rule or a subsequent amendment, the original rule or amendment prevails to the extent of the inconsistency.

A regulator may require that any form or document required to be filed with the regulator or the Commission under financial and consumer services legislation be submitted in an electronic format that has been approved by the regulator, using the technology put in place by the regulator.

Despite subsection (1), a regulator shall not require to be submitted in an electronic format a verification by affidavit or other form or document in which a signature is required to be witnessed.

If a regulator requires a form or document to be submitted in an electronic format, any requirement in financial and consumer services legislation that the truth of the information provided be certified is satisfied if the form or document is accompanied by a statement to that effect that is signed in accordance with the Electronic Transactions Act by the person so certifying.

If a regulator requires a document to be submitted in an electronic format, any requirement in financial and consumer services legislation for filing a certified copy of the document is satisfied if the document is accompanied by a statement to that effect that is signed in accordance with the Electronic Transactions Act by the person so certifying.

If a form that a regulator requires to be submitted in an electronic format is prescribed by regulation, the regulator shall approve the electronic format as being equivalent, when printed, in form and content to its counterpart prescribed by regulation.

The Lieutenant-Governor in Council may make regulations

A regulation made under paragraph (1)(d), (e) or (f) does not apply to rules made by the Commission under the Securities Act.