Access to government records

Governments and public bodies collect and keep a great deal of information. Some of that information relates to private individuals, and some relates to broad public issues.

Generally, it is in the public interest that people served by these public bodies have access to the information those bodies hold.

However, sometimes the information held by public bodies includes private information that cannot be disclosed without unreasonably invading the privacy of private individuals. The Freedom of Information and Protection of Privacy Act (FOIPOP-pronounced ‘foypop’), and the Municipal Government Act (MGA), attempt to balance the right to access information, and the need to protect the private information of individuals, businesses and some government information.

This informations provides guidance for using FOIPOP and the MGA to access records held by public bodies, and to correct your personal information.

FOIPOP and the MGA only apply to provincial public bodies and municipalities. Different laws apply if you are trying to get records from a federal public body. Click here for information about access to records from a federal body.

What are FOIPOP and the MGA?

The MGA and FOIPOP are laws which give you the ability to apply to access “records” held by ‘public bodies’.

Public bodies include:

• provincial government departments, agencies, boards, and commissions;
• municipalities, towns and villages;
• municipal police and fire departments;
• school boards;
• health authorities;
• community colleges and universities.

If you want to access records held by a municipal body (such as a municipality, town, village or police service) you will be using the MGA. If you want to access information from a provincial public body, you will be using FOIPOP. In either case the process is the same, and the fees charged are the same.

FOIPOP and the MGA only apply to provincial public bodies, governments, and municipalities, they do not apply to federal public bodies.

What are 'records'?

FOIPOP defines records to include anything on which information is recorded or stored. This includes:

• books,
• documents,
• maps,
• drawings,
• photographs,
• letters
• electronic records.

Who has the records?

The first step is to determine which organization has the records you want to see.

The Office of the Information and Privacy Commissioner for Nova Scotia ("OIPC"), also known as the Review Office, has contact information for the various bodies governed by FOIPOP and the MGA on their website. Click here to see that information.

Alternatively, you may contact Nova Scotia’s Information Access and Privacy Services.

What information do you want?

Depending on the type of record you are trying to access you may not need to make a formal request. Some public bodies routinely release information, through a “Routine Access” policy (click here to see an example).  It is worth contacting the public body directly first to find out if the record you want will be released without requiring a formal request.

However, if you are trying to get records that contain personal information, you will likely have to make a formal request.

Formal requests under FOIPOP

Formal FOIPOP requests must be:

• in writing
• specific enough to allow the person responding to the request to identify the record
• accompanied by a $5 application fee. You can contact the public body you are requesting the information from to find out who you should make the cheque out to. You do not have to pay a $5 application fee if you are requesting your own personal information.

You can find pdf and word versions of request forms here. You do not have to use these forms but they may be helpful.

Personal information is info about you, like: your health care history; your financial, criminal or employment history; your family status; another person's opinions about you.

How much does it cost?

When you make an information request, other than your personal information, you may be required to pay fees in addition to the $5 application fee. You may be required to pay for the cost of:

• locating, retrieving and producing the information
• preparing the record for disclosure
• photocopying, shipping and handling the record.

You do not have to pay any fees to access your personal information.
    
The table below explains the fees that public bodies may charge for preparing the records you request.

Type of Record	Application Fee	First 2 hours of work	Photocopying	Per 30 minutes of time spent
Personal Information	Free	Free	Free	Free
Other records	$5	Free	$0.20/page	$15

The public body must give you an estimate of the total costs before doing the work. You can ask the public body to waive the fee:

• if you cannot afford the fee;
• if the records relate to a public interest issue, such as the environment or health and safety; or
• for any other reason it is fair to do so.

If you think the fee is too high, you have the right to request a review by the Information and Privacy Commissioner for Nova Scotia (IPC), referred to as the "Review Officer" in the Acts. You must request a review within 60 days. Or you could decide to narrow your scope and request fewer records.

How long will it take?

Once a public body has received your request they have 30 days to respond. However, this 30 day period may be extended if:

• your request was not detailed enough
• you requested a large number of records, or a large number of records must be searched to find your records
• the public body needs more time to consult with another public body or a third party.

You must be informed if a public body has sought to extend the 30 day time period. If, by the end of 30 days the public body has not informed you of an extension, or responded to your request, you may treat that as a refusal to provide the records and you can request a review by the Information and Privacy Commissioner for Nova Scotia.

What kind of response will I get to my information request?

Generally there are three types of responses:

• You may get all the information you requested
• You may get part of the information you requested,
• You may get none of the information you requested.

If a public body has not released some, or all of the records you requested, it must tell you why in writing.

Is there information that a public body does not have to disclose under FOIPOP?

Yes. FOIPOP provides that certain types of information may not have to be disclosed. For example, you may be refused access to information that:

• is subject to lawyer-client privilege;
• is about another person;
• is about a business;
• could harm law enforcement;
• could harm the economic or financial interests of a public body, other individuals, or the public;
• could harm an individual’s or the public’s safety;
• could harm conservation efforts.

Also, some types of records are not available under the Act.  For example:

• material that is available for purchase (such as maps)
• court files (contact the court directly for information about access to court files)
• test questions.

Correcting information about you held by a public body

FOIPOP also allows you to correct personal information a public body has about you.

If you believe the personal information a public body has about you is incorrect you may request that the public body correct it. A simple form to request correction of personal information can be found here. There is no charge for requesting the correction of your personal information.

If a public body refuses to correct your personal information you may apply to the Information and Privacy Commissioner for Nova Scotia (IPC) for a review of the decision. You must request a review of a decision of a public body within 60 days of receiving the decision. The IPC has discretion to extend the 60 day deadline in some situations, so it is best to contact the Office of the Information and Privacy Commissioner to discuss your situation even if you have missed the review deadline.

What if I don’t agree with the response I get?

If you get a decision from a public body which you do not agree with you may ask the Information and Privacy Commissioner for Nova Scotia (IPC) to review the decision. You can find out more about the Information and Privacy Commissioner here.

You must request a review within 60 days of receiving the decision of the public body.  The IPC does have discretion to extend the 60 day deadline in some situations, so it is best to contact the Office of the Information and Privacy Commissioner to discuss your situation even if you have missed the review deadline.

You may request that the IPC review:

• A fee estimate;
• A timeline extension, or failure to respond within the 30 day time limit;
• A refusal or partial refusal to provide the records you requested;
• A refusal to correct of your record.

To request a review you must inform the IPC of your request. You can either use a form or write a letter. Be sure to include:

• the name of the public body, and the date of the decision;
• copy of the public body’s decision;
• if available, a copy of your original access request;
• your address and telephone number.

You may also appeal the decision of a public body to the Supreme Court of Nova Scotia. However, you must do so within 30 days of receiving the decision. Appealing to the Supreme Court of Nova Scotia is more complicated.  You may need to pay court fees and other costs and other factors may need to be considered. It is a good idea to consult a lawyer if you wish to appeal to the Supreme Court.

For more information

Office of the Information and Privacy Commissioner, also known as the Review Office:

Mailing Address:
Box 181
Halifax, NS
B3J 2M4
 
Phone: (902) 424-4684
No Charge-Dial: 1-866-243-1564
Website:  foipop.ns.ca/

The Office of the Information and Privacy Commissioner for Nova Scotia also has a "Mini-Guide to Access under the Freedom of Information and Protection of Privacy Act in Nova Scotia", which is available online at: foipop.ns.ca/publictools

Nova Scotia Information Access & Privacy Services (IAP):

Mailing Address:
IAP Services
Department of Internal Services
PO Box 72, Halifax Central, B3J 2L4

11th. floor, Royal Centre
5161 George Street
Halifax, NS B3J 1M7

Phone: (902) 424-2985 or 844-424-2985
Website: novascotia.ca/is/branch/icts/iap/

The Personal Health Information Act and you

Nova Scotia's Personal Health Information Act (PHIA) sets out rules to protect the privacy of personal health information, and for the collection, use, disclosure, retention and destruction of personal health information.

PHIA also sets out rules about your right to:

• access your personal health information;
• ask for corrections if your health information has errors or is out-of-date;
• make a complaint and request a review if you are refused access to, or correction of, your health information, or if you feel a custodian has not followed the rules under PHIA;
• in certain situations, access the personal health information of a person who has died.

The law aims to balance your privacy rights with the needs of health care providers to share information to provide health care.

What is "personal health information"?

Under PHIA personal health information means information that identifies you and is about:

• your physical or mental health;
• your family’s health history;
• your payments for, or eligibility for, health care;
• health care you have received;
• who provides health care to you;
• organ donation, and related test or exam results;
• your health registration information, including your health card number;
• the identity of your substitute decision-maker, if you are not able to make your own health care decisions.

Does it matter what format the information is in?

No.  The rules under the PHIA apply to your personal health information regardless of how the information is recorded or stored.  Also, PHIA continues to apply to your personal health information even after your death.

Who does PHIA apply to?

PHIA allows you to apply to certain designated “custodians” for access to your personal health information.  Custodians are people or organizations who have custody or control of personal health information because they provide health care, or support the provision of health care.

Custodians include:

• any member of a regulated health care profession, like your doctor, dentist, nurse, phsyiotherapist, chirporactor, optometrist, dietician, psychologist or pharmacist;
• the Nova Scotia Department of Health and Wellness;
• the Nova Scotia Health Authority;
• the Izaak Walton Killam Health Centre (IWK);
• the Review Board under the Involuntary Psychiatric Treatment Act;
• licensed pharmacies;
• a licensed continuing care facility under the Homes for Special Care act or otherwise approved by the minister, a listing of these facilities can be found here
• Canadian Blood Services;
• a Nova Scotia Hearing and Speech Centre;
• any government approved home care, or home oxygen agency;

PHIA does not apply to others who may have your health information for reasons unrelated to providing health care to you, such as your employer or an insurance company. 

Accessing your personal health information

You can make a formal request to examine or have a copy made of a record relating to your personal health information that a custodian has.

A formal request must be

• in writing
• specific enough to allow the custodian to identify the record.

You do not have to tell the custodian why you want to see the record. If your request is not specific enough the custodian must offer you help to revise your request.

The custodian may waive the requirement for a written request if you have limited ability to read or write, or if you have a disability or condition that impairs your ability to make a written request.

How much will it cost?

Custodians may charge a general fee of up to $30.00 for the initial processing of a formal request.

The custodian may charge additional fees for photocopying and other tasks. The fees are set out in the regulations of PHIA which can be found here. Custodians must give you an estimate of the fees to be charged before doing the work.

All or part of the fee may be waived if you can’t afford to pay it, or if there is another good reason why it would be unfair for you to have to pay it.  

If you do not agree with a fee estimate, first talk with the custodian to see if they will reduce or waive the fee.  If you still can’t resolve it, you can contact Nova Scotia’s Information and Privacy Commissioner, also known as the Review Officer,  to request a review. You will find more information about requesting a review below.

How long will it take?

A custodian must respond to your formal request within 30 days of receiving that request. The custodian may:

• grant your request; or
• refuse your request.

In some cases the 30 day time limit may be extended for another 30 days, or longer.  You must be notified in writing if the time limit  is extended. If the custodian takes longer than 30 days without informing you of an extension, this may be considered a refusal to provide the records which you may ask to have reviewed by the Information and Privacy Commissioner for Nova Scotia (IPC) .

Can a custodian refuse me access to my personal health information?

Custodians may refuse to grant access to your personal health information if it is reasonable for the custodian to believe that disclosing the records would:

• seriously harm your treatment, recovery, physical or mental health;
• identify a person who provided information they reasonably expected to be kept confidential;
• give you information about someone else’s personal health information.

Custodians may also refuse your request if providing the information would violate a legal privilege, or if they believe the request is “frivolous or vexatious". Generally, a request may be considered frivolous or vexatious if it is primarily made for a reason other than accessing the records, for example, to harass the custodian.

If you are refused access to all or part of your records, the custodian must tell you why, in writing.

If you are refused access to your personal health information and disagree with that decision you have a right to complain to the Information and Privacy Commissioner for Nova Scotia (IPC) , and ask them to review the custodian's decision.  The IPC provides independent oversight of PHIA. You must file a request for review within 60 days, from the time you get notice of the refusal.  In some cases the 60 day time limit may be extended, so it is a good idea to contact the IPC about your situation even if you have missed the 60 day time limit.

If the IPC recommends that you should be allowed access to your health record, and the custodian still refuses to allow access, you may appeal to the Supreme Court of Nova Scotia.  It is a good idea to consult a lawyer if you wish to appeal to the Supreme Court.

What if there is a mistake in my records?

If, after reviewing your records, you believe there is an error you may make a request for a correction. This request should be in writing, but the custodian may also agree to correct the record if you simply ask them to.

A custodian does not have to correct your record if:

• it is a record not originally created by the custodian, and the custodian does not have sufficient knowledge, expertise and authority to correct the record
• the record is a good faith professional opinion or observation that the custodian made about you
• you have not provided sufficient information to show that a correction is required – it is not enough to simply ask for a correction without proof.

The custodian has 30 days to respond to your request either by correcting the record, or refusing to correct your record.

If the custodian refuses to correct your record they must explain why, in writing.

If you disagree with the refusal you can request that Nova Scotia’s Information and Privacy Commissioner (IPC) review the custodian's decision. You must file your request for a review within 60 days, from the time you get notice of the refusal.

Can I access the personal health information of a person who has died?

Yes. PHIA allows a custodian to disclose personal health information about a person who has died if:

• you are the personal representative of the person who died, and you need the records so you can administer the estate; 
• you are either a family member or a person with a close personal relationship with the person who died, and the information relates to the circumstances of the death or health care received by the person who died.  Information may not be released if disclosure would be against the prior express wishes of the person who died.

Can I get a record of who has looked at my personal health information?

Yes. You can request a ‘record of user activity’ which is a list of the people who have looked at your health information in an electronic health information system. There is no fee to get this record. Once you make a request, the custodian has up to 30 days to respond.

The Information and Privacy Commissioner for Nova Scotia (IPC), and requesting a review

The Office of the Information and Privacy Commissioner for Nova Scotia (OIPC) is an independent body responsible for responding to “requests for reviews” under both Nova Scotia’s Freedom of Information and Protection of Privacy Act, and Nova Scotia’s Personal Health Information Act.

If you disagree with the response you have received from a custodian you may you may ask the Information and Privacy Commissioner for Nova Scotia (IPC) to review the decision. For example, you can request a review if:

• you disagree with a fee estimate provided by a custodian;
• a custodian fails to respond to a formal request within 30 days;
• a custodian has refused to provide access to all or part of your personal health information;
• a custodian has refused to correct an error in your personal health information;
• a custodian has refused your request, claiming it is frivolous or vexatious.

Review requests must be in writing.  You can request a review by using a form provided by the IPC, or by writing a letter. Be sure to include:

• the custodian's name, and the decision date;
• a copy of the custodian’s decision;
• if available include a copy of your original access request;
• your address and telephone number.

There is no fee for requesting a review from the IPC.

For more information

Office of the Information and Privacy Commissioner, also known as the Review Office:

Mailing Address:
Box 181
Halifax, NS
B3J 2M4

Phone: (902) 424-4684
No Charge-Dial: 1-866-243-1564
Website: foipop.ns.ca/

The Office of the Information and Privacy Commissioner for Nova Scotia also has a "Mini-Guide to Health Information in Nova Scotia", which is available online at: foipop.ns.ca/publictools

Nova Scotia Department of Health and Wellness:

Plain language information, including short video, about your rights under PHIA.

Mailing Address:
Privacy and Access Office
1894 Barrington Street
PO Box 488
Halifax, NS B3J 2R8

Phone: 902-424-5419
No Charge-Dial: 1-855-640-4765
Website: novascotia.ca/dhw/phia/

What is fraud?

Fraud is intentional deception. Fraud is a crime. Some types of fraud are referred to as scams or schemes.   Fraud affects all age groups.  Fraud usually causes financial loss for the victim.  The internet has created new opportunities for fraudsters.

The person who is deceived is generally called the victim or mark. The person who does the deceiving is generally called a fraudster, a scam artist, a perpetrator, or a thief.

Fraud can be very profitable for criminals. Fraudsters are hard to catch because they are skilled at what they do, they manage to disappear before being caught, and they may not even be located in Canada.

Victims are often too embarrassed to tell anyone, and so many frauds do not get reported.

What is consumer fraud?

Consumer fraud is intentionally deceiving a person who buys a product or a service.  For example, you are deceived into paying money for something that does not exist, is not accurately described, or is of little or no value.  Another example is being deceived into providing information that allows a fraudster to steal from you. 

Consumer fraud happens when a person, a group, or a company takes advantage of individuals, usually for monetary gain.

How does consumer fraud happen?

Fraudsters approach their victims in many different ways:

• coming door to door
• calling on the telephone
• sending mail through the postal system
• sending emails, using social media, or other online services
• meeting in a coffee shop, club, church or other place.

They may attract you with a TV commercial, a magazine article, a newspaper advertisement, a website, a survey, or through social media.

A fraudster can cause you financial loss without having to make any personal contact with you. They are always thinking of new and different scams to take advantage of people.

What are common kinds of scams?

Unfortunately there are so many types of scams they cannot all be listed here, and it is also difficult to guess what the next new scam will be. Examples of some of the more common consumer fraud scams include:

Identity Theft: The fraudster uses your personal and financial information to steal from you. This is the top fraud across North America.

Advance Fee Fraud: You are asked to make a payment or to give your personal or financial information before you receive a product or service.

ATM, Credit Card, and Debit Card Fraud: The fraudster uses your pass codes and card numbers to withdraw cash from your accounts or to pay for purchases with your credit.

Counterfeiting: The fraudster pays for purchases with fake money, cheques, or money orders.

Door to door frauds: The fraudster comes to your door and says “I was driving by and noticed that your roof needs repair.” Or “I have some left- over materials I can sell you at cost.” Or “I’ll need a 50% down payment to purchase materials.” Always check with the Better Business Bureau or a neighbour who has used them before hiring any person to do work on or in your home.

False Charities: The fraudster pretends to be a charity (sometimes by using a similar name, thanking you for your past support, or by trying to take advantage of a disaster such as an earthquake or flood). Sometimes the fraudster will go door to door pretending to collect donations for a charity.

Impersonation: The fraudster pretends to be someone or something else for personal gain; for example, someone pretends to be a grandchild who needs money.

Investment Fraud: The fraudster misleads you into giving money for business ventures that promise unrealistic profits.

Misleading Job Opportunities: The fraudster promises a large income for easy work, a fee or a start-up investment, or an almost guaranteed job after an expensive course.

Online Auctions, Lotteries, and Contests: The fraudster tricks you into purchasing items of little or no value, or into buying tickets or prizes that do not exist or have little value.

Contact the Canadian Anti-Fraud Centre and Consumer Affairs Canada more information about current scams. 

Recognizing fraud

If it sounds too good to be true, it usually is. Here are some things you can look for that will sometimes point to a scam:

• contact from strangers looking to offer you a deal
• over-excited callers using a lot of pressure
• people pushing you for immediate answers or confirmation of a deal
• people who insist that you not tell anyone else about the deal
• people who discourage you from getting any advice or advice only from a person they suggest
• any deal in which what you earn will be based on how many people you involve in the deal
• people who will not send you any information until you give them money or information
• any deal where you have to pay a fee or buy something before you receive a prize, credit, or product that you did not order
• prices so low they are unreasonable compared to their true value
• any reward, prize, or payment (usually very large) you are promised in exchange for your banking information
• contact from people, businesses, or creditors that you do not know
• people claiming to represent a charity that you do not know or that has a name very close to a charity that is well-known
• companies that try to sound like a well-known agency or company
• people contacting you for your credit card, calling card, banking information, or social insurance number
• any claim that you have won a prize for a contest you have not entered
• people saying they are calling from your bank and asking you to provide information about your account to help them catch a fraudster

What is identity theft?

Identity theft is getting your personal information and using it to steal from you.  Identity theft is now the fastest-growing fraud. 

Personal information might include your address, date of birth, social insurance number (SIN), credit card or bank card numbers, personal identification numbers (PINS) and pass codes, and driver's license numbers.  If identity thieves get your personal information, they may:

• take money out of your bank accounts
• charge purchases to your credit cards
• apply for new credit cards or loans in your name
• buy expensive items on credit in your name.

In extreme cases, identity thieves not only collect personal information about you, but they may also watch you. They learn about your friends and family members, and learn your personal weekly routine.  They they decide how best to take advantage of you.  Sometimes they pretend to be stranded family members who urgently need money.  Sometimes they pretend to be you and arrange to mortgage or sell your house.

How do identity thieves get personal information?

Here are some of the ways identity thieves can get your personal information. They may:

• steal it from your wallet or purse, home, mailbox, workplace, vehicle, or computer
• go phishing, which means sending you an email threatening serious consequences if you don’t update information on a website at once. This gets you to go to the website so that they can get personal information such as passwords and access codes from you.
• pretend to be someone entitled to request information (such as a government official, bank employee, landlord, creditor, or employer)
• collect it from your garbage. (for example, bank and credit card statements, copies of credit or loan applications, financial statements, and tax returns.)
• redirect your mail, open it, and then put it in your mailbox
• rig automated teller machines (ATMs) and debit machines so your debit or credit card number and PIN can be read
• shoulder surf — hang around your shoulder to watch as you punch your access codes and passwords into ATMs, debit machines, telephones, and computers
• buy or trade customer mailing lists
• search obituaries, phone books, directories, and other public records
• place false advertisements for jobs to obtain your résumé and contact information
• pretend your personal details are needed to claim a prize or lottery winnings
• use letterhead that looks like it comes from a government department or financial institution to get personal information from you

Protecting yourself from fraud

The best way to protect yourself from fraud is to be informed and alert.

• Protect your personal financial information. Do not give any of your banking or credit card information to anyone you do not know and trust. Do not write down your PIN.
• Cover the keypad or keyboard when you are entering your passwords and pass codes, and look around you to make sure that no one is looking over your shoulder.
• Check before making purchases when you are not dealing face to face with someone you know, ask for a name and contact information, and make sure the person is who they claim to be.
• Get at least two written quotes for all repair work; ask for references and check them; check for complaints at the Better Business Bureau; and don’t agree to pay all the money up front.
• Be aware that police and financial institutions never call or email you to ask for your bank card information, credit card details, or banking details.
• Do not provide more personal information than is necessary for your business.
• Only give your SIN when absolutely necessary, and do not carry your SIN card with you. Businesses such as stores should not be asking for your SIN number.
• Do not give your address and phone number unless there is a good reason.
• Carry only the documents and cards you need.
• Do not leave your purse or wallet unattended.
• If you are paying by debit or credit card, make sure that your card number does not appear on the receipt.
• If you are paying with a debit or credit card in a restaurant, keep your card in sight. Arrange to pay at your table or go with the server to process the card.
• Shred receipts and copies of papers you no longer need such as bank statements, tax returns, credit applications and statements, receipts, insurance forms, and credit offers you get in the mail.
• Do not leave personal information sitting around at home, in your vehicle, at your workplace, or on your computer.
• Keep important documents such as your birth certificate, tax returns, and social insurance card in a secure place.
• When you receive renewal documents and cards, destroy the old ones and sign the new ones right away.
• Know when your credit card and financial statements and utility bills are supposed to arrive in the mail.
• Keep credit card, debit card, and ATM transaction records so you can match them to your statements.
• Check your bank and credit card statements carefully to ensure that there are no withdrawals or charges that you were not expecting.
• Update your credit cards to ones that have the latest security features, for example, “chip cards” which require a PIN because they are embedded with a micro-computer chip.
• Let your credit card company know when you are leaving the country. Your credit card company should contact you if there is unusual activity on your card such as stays at international hotels.
• Lock your mailbox.
• Pick up your mail promptly.
• Do not pick pass numbers (for your credit card, bank account, etc.) that refer to your personal information (like your birth date or SIN).
• Do not pick passwords that can be easily be guessed such as the name of your pet.
• Use spyware filters, email filters, and firewall software on your computers.
• If you use secure internet sites for financial transactions, follow security instructions when you enter and leave the site. Under the “Tools” section in your web browser, click “Clear Recent History” when you are done.
• Be sure all personal information is deleted before you sell, recycle, or discard your computer. You may have deleted files, but the information may still be on the hard drive.
• Consider signing up with the National Do Not Call List, which prohibits most businesses that you don’t deal with from contacting you by phone.

What can I do if I suspect that I am the target of fraud?

If you suspect that you are the target of fraud, do not deal directly with the person you think is trying to deceive you.  Do not agree to provide further money to get your first payments back or to keep a deal open.

You can contact your local police or RCMP detachment and the Canadian Anti-Fraud Centre. You may also report the crime online through some of the websites listed at the end of this section under "More Information".

You should also contact Equifax Canada and TransUnion Canada. They are credit reporting agencies. They can place an alert on your account so creditors must call you before opening any new accounts or changing your existing accounts. Also, ask them to send you a copy of your credit report so you can see if an identity thief has opened any new accounts or debts in your name.  The Financial Consumer Agency of Canada has information about credit reports, and credit reporting agencies.

Who should I contact if I have been the victim of fraud?

If you have been the victim of fraud, you must contact the financial institutions and credit card companies where you have your accounts. Tell them what happened and have them freeze your accounts. If the fraud has affected your account, it must be closed. You will need to open new accounts.

You should contact the police or RCMP to report that you have been the victim of fraud, no matter how small your loss may be. They may start an investigation.

You should also contact Equifax Canada and TransUnion Canada. These credit reporting agencies can place an alert on your account so creditors must call you before opening any new accounts or changing your existing accounts.  The Financial Consumer Agency of Canada has information about credit reports, and credit reporting agencies.

Report the fraud to the Canadian Anti-Fraud Centre.

If your government-issued documents were lost or stolen, contact the department, explain what happened, and ask for new documents. You will likely need to do that in writing.  Contact Service Canada at 1-800-206-7218 if your social insurance number (SIN) has been stolen.

If you think your mail is being stolen or redirected, contact Canada Post at 1-800-267-1177 or canadapost.ca.

Quick tips

• Know the source. This means checking into a Web site before handing over any personal information — especially personal financial information. This doesn’t mean you can’t shop or surf at unknown sites, but make sure you’ve done your homework before exchanging information.
• Read your e-mail carefully. Many fraudulent offers come in the form of e-mails because the Internet makes it possible to send thousands at a relatively low cost. Use a mail program that allows you to screen out these mass mailings, and you’ll spend less time with your finger on the delete key.
• Deal only with reputable organizations, and don’t give out personal or financial information unless you are sure you’re in a secure environment. Don’t judge reliability by how nice or sophisticated the Web site may seem.
• Be careful at auction sites, one of the areas that generate a lot of complaints.
• Understand as much as possible about how the auction works, what your obligations are as a buyer, and what are the seller’s obligations.
• Find out what the Web site/company does if a problem occurs and consider insuring the transaction and the shipment.
• Learn as much as possible about the seller, especially if the only information you have is an e-mail address. If it is a business, check the Better Business Bureau where it is located. Examine the feedback on the seller. Remember because of the difference in laws, it may be much harder to solve a problem if the seller is located outside Canada .
• Find out if shipping and delivery are included in the auction price or are additional costs. If they are extra, find out exactly how much you’ll be charged.
• Don’t give out your social insurance number or driver’s license number.
• Don’t give out your credit card number(s) online unless the site is secure and reputable. Sometimes a tiny padlock appears on the screen. This symbolizes a higher level of security to transmit data. While not a guarantee, it may might provide you with some assurance.
• Don’t invest in anything you are not absolutely sure about. Do your homework on the investment to ensure that it is legitimate.
• Be sceptical of individuals representing themselves as Nigerian or foreign government officials asking or your help in placing large sums of money in overseas bank accounts.

More information

For more information, including ways to protect yourself from fraud:

• Contact the Canadian Anti-Fraud Centre (CAFC) online, or call 1-888-495-8501.  The Canadian Anti-Fraud Centre (CAFC) is the central agency in Canada that collects information and criminal intelligence on issues like  mass marketing fraud (e.g., telemarketing), advance fee fraud (e.g., West African letters), Internet fraud and identification theft complaints
  
  
• Financial Consumer Agency of Canada: Information about identity theft, types of fraud, counterfeit money and other threats or scams; protecting yourself from fraud; reporting fraud
  
  

• Report suspicious or unsolicited emails (e.g. phishing, malware, deceptive marketing, etc.) to the Spam Reporting Centre

• Get Cyber Safe : Federal government site all about staying safe online, for individuals and businesses: getcybersafe.gc.ca
  
• Contact Service Canada at 1-800-206-7218 if your social insurance number (SIN) has been stolen
  
  

• Industry Canada's Office of Consumer Affairs is a federal government department that provides tips to consumers about how to protect themselves in various consumer situations. Website: consumerinformation.ca

• Little Black Book of Scams:  easy to use reference guide filled with information Canadians can use to protect themselves against a variety of common scams from Consumer Affairs Canada.  Consumers and businesses can consult The Little Black Book of Scams to avoid falling victim to social media and mobile phone scams, fake charities and lotteries, dating and romance scams, and many other schemes used to defraud Canadians of their money and personal information
  
  

• Competition Bureau of Canada: An independent, federal government agency concerned about competitive markets and consumer information. It investigates complaints and enquiries from the public about consumer issues such as deceptive product labelling and price fixing. Website: competitionbureau.gc.ca

• Royal Canadian Mounted Police, Scams and Frauds page: rcmp-grc.gc.ca

• National Do Not Call List (Canadian Radio-Television and Telecommunications Commission): If you have complaints about a telemarketer, or wish to register a number on the Do Not Call List. Website: lnnte-dncl.gc.ca
  
• Service Nova Scotia consumer information from Nova Scotia government
  
  
• Better Business Bureau of the Atlantic Provinces: Tips for consumers; Check out a business or a charity; File a complaint; Information for businesses.

What is bankruptcy?

Bankruptcy is a legal process that frees, or ‘discharges’, you from some, and very often all, of your debts.  The Bankruptcy and Insolvency Act is a federal law that sets out the procedures and rules for bankruptcy.  The law is administered by trustees and regulated by the federal Office of the Superintendent of Bankruptcy Canada.

While bankruptcy is a serious legal process, you do not need to see a lawyer to go bankrupt.  The first step is to contact a trustee in bankruptcy , also called  Licensed Insolvency Trustee, who will review your financial situation and give you advice on your options.  You can get a free initial consultation with a Licensed Insolvency Trustee, and they will review your options with you, including ways to avoid bankruptcy.

To be eligible for bankruptcy you must:

1.  be released, or ‘discharged’, from any previous bankruptcy;
2.  owe at least $1000 in unsecured debt;
3.  live, do business, or have property in Canada; and
4.  You must be unable to make your regular payments on your debts as they become due, or, the value of all your assets must be less than your total debts.

If you have never been bankrupt before you will likely be in bankruptcy for either 9 months or 21 months, depending on how much money you make and the number of people in your household.  

If you’ve been bankrupt before the process will be longer.  For example, if this is your second bankruptcy you’ll be in bankruptcy for either 24 or 36 months, depending on your situation.When you go bankrupt your creditors must stop contacting you for payment, and any legal action to collect your debts stops.

While you are bankrupt you must report your monthly income and expenses to the trustee.  If your income is below the federal Superintendent of Bankruptcy’s Standards, which are based on Low Income Cutoffs from Statistics Canada, then you will be asked to make a modest contribution to help cover the cost of the bankruptcy administration.  If your income is above the standard, then you have a legal obligation to fund your estate, according to a formula.

The trustee will also sell some of your assets (things you own), either to you or to someone else, to repay as much of your debts as possible.  Some assets may be exempt, and cannot be sold.  Examples of exempt assets are:

• Personal belongings (like clothing), food and fuel;
• Household furnishings;
• Medical aids;
• RRSPs, except for contributions made in the year prior to bankruptcy;
• Some vehicles, up to a certain dollar value and depending on what they are used for (work or family); and
• Any tools you use for your job, up to a certain dollar value.

You may be able to retain ownership of some or all of your financed assets.  The factors determining whether you can keep financed assets are complex, so you should consult with a trustee for information about your particular situation.

During the period of bankruptcy you must perform certain duties such as going to two counselling sessions for money management help, and keeping the trustee informed of your financial situation. If you fail to carry out these or other duties, the trustee or a creditor may oppose your discharge from bankruptcy.

If you are eligible for automatic discharge then the trustee will provide you with a Certificate of Discharge, to confirm the conclusion of your bankruptcy and release from debt.  If you are ineligible for an automatic discharge, on account of conduct, underfunding of the estate or for some other reason then your application for discharge must be made in the Supreme Court before a judge or the Registrar in Bankruptcy.

What happens if I cannot pay my debts?

If you fail to make your debt payments – for example, you miss loan payments or the minimum monthly payments on your credit cards, those debts will go into default. This may mean that:

• You will have to pay a higher interest rate, and additional interest;
• The creditor may demand that you repay the whole amount of the debt;
• The debt may be sent to a collection agency;
• Your credit rating may be downgraded;
• You may face legal action, and have your wages garnished and/or assets seized;
• You will have difficulty getting credit in the future.

In addition, a creditor who has ‘security’ on an asset may seize that asset if you do not make payments on the loan.  Creditors who have a security interest are called ‘secured’ creditors.  Security is sometimes also called collateral, and may include money or goods that you promise to give the creditor if you do not pay the debt.  A common type of security is property, such as your vehicle or your house.  For example, if you default on your car loan the creditor may be able to repossess your car without having to sue you first.  If you do not pay your mortgage the mortgage lender has the right to go through a court process to foreclose on your home. See the page on foreclosure for information about the foreclosure process.

If you are having trouble paying your debts you should get some advice from a licensed trustee in bankruptcy who will review your financial situation and give you advice on your options.
Some of the options a trustee in bankruptcy may discuss with you include:

1) consolidation loans
2) refinancing
3) credit counselling
4) consumer proposal - a formal offer to settle your debts with your creditors
5) Division 1 proposal (another formal way to offer to settle your debts with creditors)
6) bankruptcy.

What is a consumer proposal?

A consumer proposal is an contract between you and your unsecured creditors providing for the settlement of debts over a period of time (no more than 5 years).  Your debts must not exceed $250,000, excluding debts secured by your family home.  For example, you might make a proposal to your creditors to pay 60 cents on each dollar you owe. It does not affect the rights of secured creditors.  An example of a secured creditor is a bank that has given you a loan secured on your home. If your creditors do not accept your consumer proposal or you fail to complete the terms of the proposal they can take legal action against you.  You should contact a licensed trustee in bankruptcy, or Service Nova Scotia's Debtor Assistance Program, for further information about consumer proposals.

What are the drawbacks to declaring bankruptcy?

 There are a number of drawbacks:

• You must report your finances on a regular basis to the trustee in bankruptcy, and the trustee may make decisions, which you may not have made yourself, such as selling a vehicle.
• You lose ownership of all assets that are not exempt from seizure under the bankruptcy process.
• Filing for bankruptcy may make it difficult for you to borrow money - at least in the short term, and will affect your credit rating. 
• Your ability to get credit after your discharge will depend on whether you can convince potential lenders of your financial rehabilitation. 
• If you declare bankruptcy that includes a student loan, you will not be able to get a student loan until at least three years has passed since your discharge from bankruptcy.

How does bankruptcy affect my credit rating?

A bankruptcy will automatically downgrade your credit rating to the lowest level.  During the counselling sessions with the trustee, the trustee will show you how to rebuild your credit rating and use credit in the future. Your credit rating should improve after bankruptcy if you demonstrate credit worthiness, including a track record of income.  The fact that you went bankrupt will show up on your credit report for 6 years after your release from a first-time bankruptcy, and for 14 years for a second time bankruptcy.  The Financial Consumer Agency of Canada has information about credit reports and scores.

My partner or spouse is not bankrupt. Do I include their assets and debts in my bankruptcy?

You would not include your partner/spouse’s assets or debts unless they are jointly held with your partner or spouse.  Your bankruptcy only involves your assets and debts.

If you own assets jointly with another person, then your portion of the non-exempt assets is part of the bankruptcy.  An example is a house that you own jointly with your partner.  The trustee will advise you on how any jointly owned assets will be dealt with in your situation.

If you and another person took on a debt together – for example, someone co-signed on a debt with you - the other person will still owe the debt even though you will be released from it after your bankruptcy.  If you co-signed a debt for someone else, the creditor will not be able to demand payment from you if the other person stops making the regular payments on the loan. 

It is important to tell the trustee if there are joint assets or debts so the trustee can assess how they should be dealt with.

Is my spouse or partner responsible to pay off my debts?

Your spouse, common law or same sex partner is only responsible for your debts if you jointly owe them, for example, a joint bank account in overdraft, a join loan or joint credit card, or a credit card where all cardholders are jointly responsible for the debt, regardless of who made the charges.

How much does it cost to declare bankruptcy?

The Bankruptcy and Insolvency Act sets out the fees a trustee is entitled to charge, as well as fees for things like counseling and filing documents with the Official Receiver.   

Your initial consultation with a trustee in bankruptcy is often free.

During your bankruptcy the Canada Revenue Agency sends any GST rebate cheques and/or income tax refunds to the trustee, as they are considered to be property of your estate in bankruptcy.  There are limits as to how much GST the trustee is permitted to retain, so at some point during the course of your bankruptcy administration you may once again receive the GST rebates.  

You will also have to make monthly payments to the trustee, the amount of which will depend on your level of income. These are called surplus income payments.

You should talk to a trustee in bankruptcy about the specific fees and costs involved in your situation.

What can I do if I cannot afford a trustee?

You should contact a trustee and set up a meeting. Often trustees will offer an initial consultation at little or no charge. At the consultation you can describe your financial situation and the trustee can discuss options with you.

If you've seen at least two different trustees and still find you can't afford it, contact the Office of the Superintendent of Bankruptcy at 1 877 376-9902 or online at osb.ic.gc.ca for information about their Bankruptcy Assistance Program . The Bankruptcy Assistance Program can help you find an affordable trustee, as long as you have received quotes from at least two different trustees in bankruptcy and cannot hire them.

What happens if I cannot pay off my student loans?

If you fail to make your minimum monthly payments on your student loan, the loan will go into default. This means you may have to pay additional interest, be prevented from applying for a student loan in the future, have your debt sent to a collection agency, potentially have your credit rating downgraded, lose future income tax and GST rebates, face legal action, and lose eligibility for the Federal government's interest relief program.    

If you are having trouble meeting you student loan payments you should apply for the government interest relief program. You can apply for this program any time during the repayment period. This program is designed to eliminate most if not all the interest on your student loan. The creditor holding your loan will have the application forms for this program. 

Go to canlearn.ca for information about the federal government's student loan Repayment Assistance Plan, or, for Nova Scotia student loans, go to studentloans.ednet.ns.ca (Nova Scotia Department of Labour & Advanced Education).

Can I declare bankruptcy on my student loans?

Yes. You may file for bankruptcy on your student loans at any point, but  you cannot be discharged from your student loan until seven years have passed between the time your studies ended and the date of your bankruptcy.

Declaring bankruptcy on your student loans before this seven-year period may not be much help to you, depending on how much other debt you have.

Once you are discharged from bankruptcy you are released from your student loan as long as your date of bankruptcy falls more than seven years after your studies concluded.

If it has been less than seven years since your last semester of school and you are having trouble paying your loan, you could apply for bankruptcy on other debts you may have, and once they are discharged you may be able to concentrate on paying off your student loan.

Depending on the circumstances, after 5 years have passed you may be able to apply to court to have your student loans discharged under the hardship provisions of the law, but you should talk with a licensed trustee in bankruptcy about your specific situation.

Depending on your situation you may also want to consider a consumer proposal as an alternative to bankruptcy.  You should talk with a trustee about your situation.

Contact the Office of the Superintendent of Bankruptcy at 1 877 376-9902 or online at osb.ic.gc.ca for more information about student loans and bankruptcy.

What is a discharge from bankruptcy?

A discharge from bankruptcy is your release from:

• bankruptcy, so you are no longer a bankrupt person, and
• the unsecured debts you brought with you into bankruptcy.

Are there debts that are not discharged in a bankruptcy?

Some debts don’t get discharged.  This means you will still owe them (be liable for them) after your bankruptcy is over. 

Examples of debts that aren’t discharged are:

• student loans where you have not been out of school for 7 years.  In some cases you may ask the court to forgive a student loan once you have been out of school for 5 years. Speak with a trustee about this option;
• spousal support ('alimony');
• child support;
• debts arising out of fraud;
• court ordered fines, penalties or restitution.

Speak with your trustee if you have questions about a particular debt, and whether bankruptcy will release you from that debt.

My loan has gone to a collection agency what can I do?

You have several options if your loan has gone to a collection agency. You can:

• do nothing, and see what action the agency takes
• contact a credit counselling service for help with your debt problems and information about your best course of action
• make a proposal to the collection agency to make payments to them that you can afford
• make a consumer proposal or declare bankruptcy
• see a lawyer. It is especially important to try to see a lawyer if you do not agree that you owe the debt, or if you get any court documents.  

Can a collection agency seize my property?

A collection agency can only seize property if it has a court order, meaning the agency would have to sue you. However, if the government is a creditor, for example, a student loan, tax debt, overpayment of a social benefit, the government may seize GST rebates and tax refunds to recover the debt.

What assets can be seized with a court order depends on your individual circumstances. Provincial laws outline a few basic rules as to what property can or cannot be seized. For example, in Nova Scotia the following property cannot be seized:

• Furniture or appliances that do not exceed a certain amount ($5,000). In most instances, collection agencies are not be interested in seizing used furniture or household appliances anyway.
• An automobile that you need for work if its value does not exceed $6,500, and there is no public transit. If you do not need the car for your work its value cannot exceed $3,000. However, if a financial institution lent you money specifically to buy the car and you fail to make payments on the loan, the car may be seized whatever its value and whether or not you need it for work, as they are a secured creditor.
• Tools or items that you use for your employment to a value of $1,000.

Keep in mind that a collection agency must first sue you in court and get a court order before it can seize any of your goods or money. The collection agency must notify you if they decide to sue you.

Go to the page on Collection Agencies  for more information, or contact Service Nova Scotia, as they regulate collection agencies in Nova Scotia.  The Financial Consumer Agency of Canada also has information about dealing with collection agencies.

More information

 For more information contact:

• Office of the Superintendent of Bankruptcy - regulates bankruptcies, oversees and licenses trustees in bankruptcy (licensed insolvency trustees), and has helpful general information for debtors and creditors
  Website  www.osb.ic.gc.ca
  Industry Canada
  Phone: 1 877 376-9902 (toll free)

• A trustee in bankruptcy, also called a Licensed Insolvency Trustee.  Trustees are listed in the Yellow Pages  under 'Bankruptcies', or search for 'trustee in bankruptcy' online.  You can also get a listing of local trustees  from the Office of the Superintendent of Bankruptcy at 1 877 376-9902 (toll free) or osb.ic.gc.ca

• A credit counselling agency.  Credit counsellors cannot administer bankruptcies or consumer proposals, but can help you in a number of ways, such as a debt management plan, budgeting, wise credit use, and general money management. The Financial Consumer Agency of Canada  - has a fact sheet about how to find a reputable Credit Counselling service: www.fcac-acfc.gc.ca.
  
  
• Debtor Assistance Program, offered through Service Nova Scotia. Provides help with managing your money, dealing with creditors, and consumer proposals, but cannot adminster bankruptcies (you need a licensed trustee for a bankruptcy).  Contact the Debtor Assistance Program at 1 800 670-4357 or 902-424-5200, or online at gov.ns.ca/snsmr/access/individuals/debtor-assistance.asp
  
• Nova Scotia Legal Aid legal information about bankruptcy

• Financial Consumer Agency of Canada - fcac-acfc.gc.ca, or call 1 866 461-3222.  Lots of consumer information on many money related topics.

What is a collection agency

Sometimes a creditor (company you owe money to) may use a collection agency to collect a debt if you have fallen behind in your payments.  They might hire the collection agency to collect the debt for them, or they might sell the debt to the collection agency.

A collection agency is a business that arranges for and obtains payment of money owed to another person or organization.  For example, you might hear from a collection agency about a credit card debt, an outstanding loan or a line of credit.

Collection agencies and collectors (person employed by a collection agency) must be licensed to do collection activities in Nova Scotia.  Service Nova Scotia licenses and regulates collection agencies and collectors in Nova Scotia, under the Collection Agencies Act.

Is a collection agency allowed to call me?

Yes, but the agency must first write to you and tell you that it has been hired to collect the debt, or has purchased the debt.  When they contact you the agency or collector must tell you the agency's name, the amount you owe, and identity themselves and how they are authorized to collect the debt.

There are other rules collection agencies must follow when they are trying to collect the debt.

Rules a collection agency must follow

A collection agency or collector must not call or talk to you until you have been notified in writing that they have been hired to collect the debt. When they contact you the agency or collector must tell you the agency's name, the amount you owe, and identity themselves and how they are authorized to collect the debt.  They must first make sure that you owe the debt before they try to collect it.  

The agency or debt collector must not:

• Make collect calls to you
• Contact you if you have written telling them to contact your lawyer (or your lawyer wrote to them saying that)
• Use documents, notices or  letters which are made to look like court forms
• Pretend  to represent the police or sheriff
• Threaten you or use abusive or intimidating language
• Harass you or your family, for example, by calling every 15 minutes
• Try to collect the debt on a Sunday or any day before 8:00 am or after 9:00 pm
• Give misleading information or try to make things difficult for you at work.

The agency or debt collector may:

• Contact your family, friends, neighbours, employer, or anyone else, but only to try to get your address
• Collect the debt, but not any additional amount
• Sue you if the creditor has assigned the debt to the collection agency in writing and you have been notified of the assignment.

Can a collection agency contact my family, friends, neighbours or employer?

Yes, but only to get an address for you.  However, they can contact anyone who is also on the debt - as a co-signer or guarantor for example.

What can I do if I believe a collection agency broke the rules?

First, see if you can complain to the supervisor or manager of the collection agency to resolve the problem.  Otherwise, you can complain to Service Nova Scotia. You may contact Service Nova Scotia toll-free at 1 800 670-4357 or 424-5200 in the Halifax Regional Municipality, or visit novascotia.ca.  In the most extreme cases, a collection agency's license can be suspended or cancelled.  

Contact the Financial Consumer Agency of Canada if you're dealing with

• the debt collection department of a federally regulated financial institution
• a debt collection agency hired by a federally regulated financial institution.

Options if a collection agency contacts you

• Keep a record of who is contacting you, the name of the collection agency, and their contact information
• Ask for a written statement of what you owe, including any interest or late payment charges.  Take the time to check your records to make sure you owe the debt, and that the amount owing is right
• If possible, and if you owe the money, pay the debt. Note that the agency is not allowed to collect more than the amount you owe and cannot charge you for its costs to collect the debt.   However, interest can continue to build up on an outstanding debt
• If it is impossible for you to pay the full amount right away, explain why. You may suggest some alternative method of repayment, either a lump sum at a later date or a series of monthly payments for example.  You might be able to negotiate to just pay a portion of the amount you owe
• Never send cash and always make payments in a way that you have a receipt - such as payment online, a money order,  a cancelled cheque from your bank or a receipt from the agency
• If you do make an agreement with a collection agency, make sure it is in writing.  If they will not put it in writing, send them a letter confirming the agreement, and keep a copy for yourself
• You may want to look at the Collection Agencies Act and the Consumer Creditors Conduct Act (if you are contacted by the collection department for a business)
• Contact a lawyer.  Nova Scotia Legal Aid may provide brief legal advice on credit and debt issues, or contact a lawyer in private practice
• Get help dealing with your financial situation.  

Can a collection agency take me to court?

Yes, if the creditor assigns, that is sells, the debt to the collection agency, the agency can sue you in court.  There are time limits (limitation periods) on the length of time a creditor has to sue on a debt, so you should find out how old the debt is.

If you get a court paper like a Notice of Claim (Nova Scotia Small Claims Court) or a Notice of Action on a Debt (Supreme Court of Nova Scotia)  or any other official court paper, it is a good idea to talk with a lawyer.

Can a collection agency seize my property?

A collection agency can only seize property if it has a court order, meaning the agency would have to sue you in court and win.

However, if the government is a creditor, for example, a student loan, tax debt, overpayment of a social benefit, the government may seize GST rebates and tax refunds to recover the debt.

What assets can be seized by a collection agency with a court order depends on your individual circumstances. Two Nova Scotia laws, the Judicature Act and the Personal Property Security Act, outline a few basic rules about what property can or cannot be seized.

In Nova Scotia the following property cannot be seized (taken), even with a court order:

• Clothing, furniture or appliances that are not worth more than $5,000. In most instances, collection agencies are not interested in seizing these items anyway.
• A vehicle that is not worth more than $3,000.  If you need your vehicle for work and there is no public transit, it can be worth up to $6,500. However, if a financial institution lent you money specifically to buy the car and you fail to make payments on the loan, the car may be seized whatever its value and whether or not you need it for work, as they are what is called a secured creditor and the vehicle is collateral for the loan
• Tools or items that you use for your work to a value of $1,000
• Medical or health aids reasonably necessary for the debtor and their family
• Family's fuel and food.

Keep in mind that a collection agency must first sue you in court and get a court order before it can seize any of your goods or money. The collection agency or other creditor must notify you if they decide to sue you.

If you get a court paper like a Notice of Claim (Small Claims Court) or a Notice of Action on a Debt (Supreme Court of Nova Scotia) , or any other official court paper, it is a good idea to talk with a lawyer to get legal advice.

Can a collection agency take my income?

A collection agency can only seize (take) or garnish income or wages if it has a court order, meaning the agency would have to sue you in court and win.

However, if the government is a creditor, for example, a student loan, tax debt, overpayment of a social benefit like income assistance:

• the government may seize GST rebates and tax refunds to recover the debt, without a court order; and
• debts owing to government benefit programs like CPP, OAS & GIS, Income Assistance, EI can be deducted from benefits payable by those programs, without a court order.

Certain income sources are protected and cannot be seized by a collection agency or other private creditor, even with a court order, including:

• Canada Pension Plan (CPP) benefits
• Old Age Security (OAS) and Guaranteed Income Supplement (GIS)
• Income Assistance
• Employment Insurance (EI)

If you are working and there is a court order against you saying you owe a debt, the judgement creditor (who you owe the debt to) may have the Sheriff seize up to 15% of your gross wages (before tax and lawful deductions) to pay the debt. 

However, your wages cannot be seized if you would be left with less than:

• $330 a week, net pay (after tax and lawful deductions from your pay), or
• $450 a week, net pay, if you support a dependant.

Keep in mind that a collection agency must first sue you in court and get a court order before it can seize any of your goods or money. The collection agency or other creditor must notify you if they decide to sue you.

If you get a court paper like a Notice of Claim (Small Claims Court) or a Notice of Action on a Debt (Supreme Court of Nova Scotia) , or any other official court paper, it is a good idea to talk with a lawyer to get legal advice.

More help and information

For help and information:

• A trustee in bankruptcy, also called a Licensed Insolvency Trustee can provide professional advice about your options for dealing with debt.  Trustees are listed in the Yellow Pages  under 'Bankruptcies', or search for 'trustee in bankruptcy' online.  You can also get a listing of local trustees from the Office of the Superintendent of Bankruptcy at 1 877 376-9902 (toll free) or osb.ic.gc.ca
  
  
• Office of the Superintendent of Bankruptcy - regulates bankruptcies, oversees and licenses trustees in bankruptcy (licensed insolvency trustees), and has helpful general information for debtors and creditors
  Website  www.osb.ic.gc.ca
  Industry Canada
  Phone: 1 877 376-9902 (toll free)

• A credit counselling agency.  Credit counsellors cannot administer bankruptcies or consumer proposals, but can help you in a number of ways, such as a debt management plan, budgeting, wise credit use, and general money management. The Financial Consumer Agency of Canada  - has a fact sheet about how to find a reputable Credit Counselling service: www.fcac-acfc.gc.ca.
  
  
• Debtor Assistance Program, offered through Service Nova Scotia. Provides help with managing your money, dealing with creditors, and consumer proposals, but cannot adminster bankruptcies (you need a licensed trustee for a bankruptcy).  Contact the Debtor Assistance Program at 1 800 670-4357 or 902-424-5200, or online at gov.ns.ca/snsmr/access/individuals/debtor-assistance.asp
  
  
• Nova Scotia Legal Aid legal information about bankruptcy, and Debts

• Financial Consumer Agency of Canada - fcac-acfc.gc.ca, or call 1 866 461-3222.  Lots of consumer information on many money related topics, including Collection Agencies
  
  
• A lawyer in private practice, or Nova Scotia Legal Aid if you cannot pay a lawyer.

What is a contract?

A contract is a legally enforceable agreement made between two or more people or organizations. The people who enter into the contract are called the parties to the contract.  

Consumer contracts are made between a buyer and a seller when a buyer offers to buy something, the seller accepts, and they agree to exchange the goods or services for something of value, usually money.  The law says the basic essential elements of a contract are: offer, acceptance, and consideration (something of value exchanged).  A contract must be for a legal purpose, and it must be voluntary.  A contract does not have to be in writing.   An oral or verbal contract is valid as long as it has the essential elements of a contract. A written contract, however, will provide a record of the terms the parties agree to.  Some special types of contract must be in writing to be enforceable.  An example is a contract to purchase real property.

For example, you go to a store to buy a new shirt.   You select a shirt and bring it to the clerk. The clerk scans a tag-on the shirt and both of you see a price of $20. You take a $20 bill from your wallet and place it on the counter (this is the offer). The clerk takes the money (this is the acceptance) and gives you the shirt (this is the consideration – a $20 bill exchanged for a shirt). The clerk also hands you a receipt. The receipt "memorializes" (is written proof of) the contract, but it is not required to have a valid contract. This transaction represents a contractual relationship between the buyer (you) and the seller (the store).

What is a valid contract?

Not every agreement is a legally binding contract. To be legally enforceable a contract has to be valid. That means it has to have certain key ingredients, specifically:

• Intent: The parties intended to make a contract.  If there is a dispute courts look at the words and actions of the parties to figure out whether a reasonable person looking at the situation would think that the parties intended to be bound by their agreement;

• Capacity:  The parties must have the legal ability to enter into an agreement. Generally, to have capacity a person must be mentally competent, must not be impaired by alcohol or drugs, and they must be over the age of majority (over the age of 19 in Nova Scotia). A minor may enter into contracts, but they can choose to void the contract when they reach the age of majority. However, there are exceptions. For example, employment contracts and contracts for "necessaries" of life, including food, clothing and shelter, cannot be voided when the person reaches the age of majority;
  
  
• Offer: An offer is the indication by one person to another that she is prepared to enter into a legally binding agreement;

• Acceptance: when one party accepts an offer made by the other party. A person can accept an offer with their by words (for example,  by saying or writing, “I accept your offer”). However, a person can also accept an offer through their actions (for example, by signing a contract, or when a reward is offered for finding and returning a lost dog and someone actually finds and returns the dog).

• Consideration: Something of value (consideration) is exchanged.  Consideration may be money, or a service, product, or anything that the parties consider acceptable in the situation. For example, if a baker sells a loaf of bread to a customer for $3.50 then the baker's consideration would be the loaf of bread and the customer’s consideration would be the $3.50.

• Legal purpose: A contract made for an illegal purpose will not be enforceable by the courts.

• Certainty of terms: The terms of a contract must be certain enough so that each party knows what they are obligated to do under the contract. If there is too much confusion or misunderstanding about what the terms of the contract are then there is not really any agreement for the court to enforce.

10 contract tips

1. Shop around. Understand exactly what each company is offering. The more you know, the more you can negotiate. Compare price, guarantee or warranty, how long the contract is for and any other terms or conditions that are important to you.
2. Know who you're dealing with. Reputation is important, so ask friends or family for references. If you are not sure about a company's reputation check with the Better Business Bureau..
3. Negotiate. Most contracts can be negotiated. Use the information you gathered while shopping around to get the best service and price. Don't feel pressured to sign immediately – if the company or individual wants your business, they will listen to your concerns.
4. Read the contract and pay attention to the details. Make sure any verbal agreements or claims made by the salesperson are written into the contract. Cross-out any parts that you do not want to agree with, and have these changes initialled by you and the salesperson before you sign. Fill all blank spaces so that details cannot be added later by the salesperson.
5. Understand everything in the contract. Ask the salesperson questions and get advice if there are parts that  you don't understand. Don't forget that the fine print is part of the contract too. You can have a lawyer review the contract if you feel you need to.
6. Know who to call for help or make a complaint. Ask the salesperson for a customer service phone number and the steps to take if you need to make a complaint.
7. Remember that a signed contract is a legal document, so you will have to live with what you agreed to. Generally, a contract cannot be changed or broken unless you and the other party both agree.
8. Know how to get out of it. In some cases a short period of time is allowed to cancel a contract without penalty; it's called the "cooling off period" and it should be described in the contract. Even if it isn't, you might still have a cooling off period. Contact Service Nova Scotia to find out if there is a cooling off period in your situation, and how long it is if there is one. To cancel a contract before it is over, both sides have to agree, but usually it will cost you.
9. Sleep on it. Is this what you really need and want? It's okay to change your mind before signing or agreeing to a contract.
10. Once it's signed, get a copy and keep it. You may need it later on for reference, or to launch a complaint if you have a problem.

Adapted from Justice Education Society of BC and the Financial Consumer Agency of Canada.

Cancelling a contract

If a contract is valid then the parties are bound by it. That means most of the time a contract cannot be cancelled without penalty.

If you change your mind and no longer wish to be bound by the contract, in most case the other party must agree to let you out of the contract.

If the other party does not agree to let you out of the contract, they may allege the contract was breached (that you broke the contract terms) and you may still be on the hook for whatever it is you agreed to under the contract, or at least for whatever penalty might be in the contract for breaking its terms, or for the remedies a court can award for breach of contract.

However, there are a few exceptions.

Some contracts might be cancelled depending on the type of contract or the conduct of the parties. The contract itself might have terms saying how the contract may be cancelled, and if it is, what the consequence would be.

Also, in some cases there might be an automatic cancellation period, sometimes called a "cooling off period", that allows one of the parties to change their mind without consequences and withouth having having to give a reason, within a specific window of time.  If there is a cooling off period it would either be specifically written in the contract, or come from a statute like Nova Scotia's Consumer Protection Act.  For example, in Nova Scotia there is a cooling off period for gym contracts, payday loans, direct sales, online sales, and prepaid funeral service contract.

If a contract does not have all the ingredients listed in the section “What is a valid contract?” then it is void and likely would not be legally enforceable because it is invalid. Examples of invalid contracts would be contracts for the sale of stolen goods, contracts made with a person who lacks capacity, or contracts where nothing of value is exchanged.

Some contracts are voidable and might be cancelled for reasons such as:

• a serious misrepresentation made by one of the parties;
• a mistake about a key contract term; or
• duress or undue influence or pressure being put on one of the parties.

Misrepresentations

Before a contract is made, the parties often talk about the terms of the agreement. They may make statements to encourage the other person to make the contract. These statements are called representations. 

Misleading,  untrue or inaccurate representations are known as misrepresentations. A misrepresentation is something that is untrue, inaccurate or misleading that convinces the other person to enter into a contract. The law recognizes several different kinds of misrepresentation:

• Fraudulent or false misrepresentation is when a person misrepresents something intentionally or recklessly, knowing it is false, to convince another person to enter into a contract.  For example, a person who sells fake weight loss pills that they know don’t really work.

• Negligent misrepresentation is when a person carelessly makes a misrepresentation that they really should have known not to make. For example, a health care professional who sells phony weight loss pills that don’t work and who didn’t bother to research them.

• Innocent misrepresentation is when a person makes a misrepresentation that they had good reason to believe was true.  For example, a person who sells phony weight loss pills, but who was told by a doctor that they were effective.

If a person decides to enter into a contract because of a misrepresentation, they may be able to get out of the contract, or receive damages (money) from the party that made the misrepresentation, depending on the misrepresentation and all of the facts.

A contract must be voluntary

If a person can prove that they were forced into a contract under duress or because of undue influence then the contract may not be enforceable.  Duress is a wrongful act or threat that makes someone do something against their will. If a person signs a contract because the other person threatened them the contract may be unenforceable, depending on the circumstances and kind of threat that was made.

Undue influence is when someone abuses their power over another person to convince them to do something against their will. If there was an unequal relationship where one person took advantage of another person’s position to pressure them into making a contract, that contract may be unenforceable..

What if I can't do what I was supposed to do under the contract (frustrated contracts)?

If, through no fault of either party, something happens so that the contract becomes impossible to fulfill then the contract may be what is called frustrated and the parties may be excused from the contract.

For example, imagine that Alice agrees to purchase Betty’s car for $2500. Unfortunately, before they can complete the sale Betty’s car is stolen. Through no fault of either party, Alice no longer has a car to sell to Betty. The contract would be frustrated and Betty would not have to pay.

This is different from a party breaching (breaking) the terms of a contract, as the event is due to unforeseen circumstances and is not because of the actions of either of the parties.

Breach of contract

Breach of contract is when a party does not do what they agreed to under the contract.

For example, imagine that Alice entered into an agreement with Betty to shovel her driveway for $15 on a particular day. If Alice does not show up to shovel Betty's driveway on the day agreed to, then she has breached their contract.

Someone who breaches a contract might be sued by the person who did not break the contract terms. If they are successfully sued in court then the party who broke the contract terms may have to pay damages (compensation), or in some cases the judge might order them to do what they promised to do under the contract.  

A breach of contract does not automatically end the contract. Instead, the person who did not break the contract terms gets to decide whether to treat the contract as still in place, or to treat it as at an end.

Options if a contract is broken (remedies)

Someone who breaches a contract may be sued by the other party. The lawsuit would either be in Small Claims Court or the Nova Scotia Supreme Court depending on what the case is about, the amount of money involved, and what remedies the plaintiff is seeking.

If the other party is successful with their lawsuit and the judge decides that there was a breach of contract then the next step is for the judge to decide what remedy they should grant.

A court will look at all of the circumstances of the case before choosing what remedy to award. The following are the general types of remedies that a court may award:

• A party may be compensated in damages (money) for the loss they suffered or for the work they completed under the contract;
• The party that breached the contract may be ordered to do what they were supposed to do under the contract in the first place.  This is called specific performance;
• The contract might be rescinded (cancelled) so that the parties are no longer bound by it.

Even if there is a breach of contract, the person who did not break the contract terms is expected to mitigate their losses.  This means they are expected to take reasonable steps to avoid further damage or increased costs arising from the breach of the contract.

If you are thinking about a law suit it is a good idea to see a lawyer to get legal advice before you decide whether that is the best course of action, and also to decide which court to go to.

Consumer sales contracts

Most businesses who sell things to the public in Nova Scotia are subject to the Consumer Protection Act.

The Consumer Protection Act applies whenever a consumer sale is made by a seller in the ordinary course of business in the province.

A consumer sale is a sale where goods or services are purchased for the buyer’s personal consumption or use. A seller is any person who is in the business of selling goods or services to buyers.

Under the Consumer Protection Act there are certain terms that every consumer sales contract is deemed to have even if they are not mentioned by the seller or written into the contract.

These are the terms that automatically apply to every consumer sales contract in Nova Scotia:

• The seller can only sell goods if they are the true owner of the goods; this is called a "right to sell" condition

• A buyer has the right to use and enjoy the goods that they purchase. No other party may use or enjoy the goods without the buyer’s consent; this is called the warranty of quiet enjoyment

• The goods must be free of any financial claims like outstanding payments or liens; this is called the "freedom from encumbrances" warranty

• The goods must fit the description provided by the seller; this is called the "correspondence with description" condition

• If the seller is aware why the buyer is purchasing the goods then the goods must fit the purpose that the buyer is buying them for; this is called the "fitness for purpose" condition

• The buyer must be able to use the goods for their ordinary purpose, unless there are defects that are acknowledged by the buyer and the seller; this is called the "merchantable quality" condition

• The goods are presumed to be new and unused unless they are described otherwise

• Goods must be durable for a reasonable period of time based on their normal use and the circumstances of the sale

• If services are performed, the services are to be performed in a skillful and professional manner.

The seller is not permitted to override these terms, or state that they do not apply. If a seller does attempt to override these terms, or state that they do not apply, then a court would likely consider the contract to be void and unenforceable.

Direct sellers

Direct sellers are sellers who sell goods or services away from their usual place of business.  Door-to-door sales are the most common example, but direct sellers also include telemarketers and people who sell goods at home-based parties.

Direct sellers are regulated under the Direct Sellers’ Regulation Act. Every direct seller must be licensed by Service Nova Scotia.  

Most direct sales contracts have to be in writing and they have to include:

• the direct seller’s name, business address and telephone number

• the salesperson’s name and signature

• the date and place of the contract

• an itemized price of the goods or services, terms of payment and the total cost of the contract

• a good enough description of the goods and services to identify them

• a statement of the buyer’s cancellation rights

• the delivery date of the goods or services if not provided on the transaction date

• the completion date for providing the services if applicable

• where credit is extended, a statement of any security taken and the cost of borrowing

• a description of any goods taken in trade and the value given to the goods; and

• the signature of the purchaser.

A direct sale can be cancelled within 10 days of making the purchase. The buyer has to provide notice, in writing, to the seller that they wish to cancel the sale. The buyer does not have to tell the seller why they want to cancel. The 10 days to cancel a sale starts from the day the buyer receives the contract.

For more information on your rights when dealing with direct sellers, contact Service Nova Scotia at (902) 424-5200 or 1-800-670-4357.

More information

• Information about consumer contracts from Consumer Affairs Canada's Canadian Consumer Handbook
• Service Nova Scotia - consumer information, or call 1 800 670-4357 or 902-424-5200
• Better Business Bureau of the Atlantic Provinces

What is a consumer reporting agency?

Consumer reporting agencies collect information about a person’s credit and payment history. Consumer reporting agencies are also called credit reporting agencies, or credit bureaus. The two main credit reporting agencies in Canada are Equifax and TransUnion. Credit reporting agencies must be licensed by Service Nova Scotia  to operate here, and must follow the rules in Nova Scotia’s Consumer Reporting Act.

What is a credit report?

A credit report summarizes your credit history. It includes information about your borrowing and repayment history, whether you have filed for bankruptcy, or have collection activities or judgments against you. The Financial Consumer Agency of Canada gives more information about credit reports and credit scores, and building a good credit history, at www.fcac-acfc.gc.ca

What is a credit report for?

Prospective creditors, landlords, insurance companies, employers, may use this information to decide whether you are a good or bad credit risk. For example, you may be asked to agree to have a consumer reporting agency give a credit report about you when you apply to:

• borrow money
• hook up power
• get a credit card
• rent an apartment
• get insurance
• get a job.

If a prospective creditor, landlord, insurance company or employer denies you a benefit or increases the cost of benefit to you based on your credit report, they must notify you immediately of the denial or increase in cost.

What is a credit score?

Your credit score is a three-digit number that comes from the information in your credit report. It shows how well you manage credit and how risky it would be for a lender to lend you money.

Who can get a credit report about me?

In most cases you must consent in writing to have your credit report given out. But there are exceptions:

• A credit reporting agency may give out your credit report without your consent if a court orders it
• A governmental body may access information in your credit file (see below), and
• If you have applied for a loan or other credit and you did not give your written consent to check your credit, the creditor may still contact the credit reporting agency. In this case the creditor must let you know that they will check your credit, and must give you the name and address of the credit reporting agency within 10 days of requesting the credit check. This rule applies to a potential lender, employer, landlord, insurer or other authorized recipient of a credit report.

Other than the exceptions listed here, no other person is authorized to obtain the information held by a credit reporting agency without your written consent, and a credit reporting agency is not allowed to sell, lease or give the information contained in your file other than to another credit reporting agency.

Can the government access information in my credit report?

Yes. Any provincial or federal government department may obtain your name, address, former addresses, and place or former places of employment from a consumer reporting agency. In addition, the collection services division of Service Nova Scotia may obtain personal information such as your address, former address, places or former places of employment, and social insurance number, in order to aid in collecting a debt or fine owing to the Nova Scotia government.

Can I refuse to give permission for a lender to check my credit history?

Yes. But the lender may refuse to give you a loan or credit without that information.

Information a credit reporting agency might have about you

Your credit report may contain information about your:

• identity, including your social insurance number and date of birth
• residence
• dependents
• marital status
• employment
• borrowing and repayment history
• income
• assets and liabilities
• credit worthiness
• education
• character & reputation
• health, physical or personal characteristics
• mode of living.

Information in your credit report must be in writing, and be fair and accurate. You have a right to have any inaccuracies in your credit report corrected.

Your right to see your credit report

You have a right to see your credit report. The reporting agency must also have someone available to explain your file to you. If you wish to see your file, you can make an appointment to do so in person at the credit reporting agency’s office. You may also request a copy of your credit file by mail, or online. It is free to get your credit file in person or by mail, but there is usually a fee to get it online. You must provide identification to view or get a copy of your credit file.

The Financial Consumer Agency of Canada has information about Ordering Your Credit Report and Score, including how to get a free credit report. Ordering your credit report has no effect on your credit score.  It is a good idea to order your Credit Report at least once a year, from each of Equifax and TransUnion, as the two organizations may have different information about you.  It is particularly important to order your Credit Report if you have been a victim of fraud, or if there has been a data breach where your personal financial information may be at risk.

Read this short article about why you should order your Credit Report.

Do I have to waive or release any legal rights in order to see my credit report?

No. A credit reporting agency cannot demand that you waive any legal rights in order to see your credit report.

If information in your file is wrong

If you find incorrect information in your file, you may file a protest or complaint with the credit reporting agency. The agency must immediately verify the information – for example, by obtaining proof of the debt from the creditor. If the information cannot be verified, the agency must remove the inaccurate information from your file.

If the information is accurate, the reporting agency must record your protest in the file and tell you, and anyone who got your credit report in the past 60 days, what action was taken. You are allowed to put a short note in your file (consumer statement), up to 100 words, explaining the circumstances of a debt, judgment, late payment, etc.

Alternatively, if you are dissatisfied by the decision of a credit reporting agency regarding your protest or complaint, you can appeal to Service Nova Scotia.  Get information here if you are making a complaint about a federally regulated financial institution (a bank, for example).

Complaints about a credit reporting agency

If you feel you have been treated unfairly by a credit reporting agency you can make a complaint directly to the credit reporting agency, and/or contact Service Nova Scotia at 1 800 670 4357 or 902-424-5200.

How long an unpaid debt stays on your credit record

For most unpaid debts the time limit is 6 years; however this time period can change depending on the type of debt, and the place you live in Canada.

In Nova Scotia in most cases a creditor must sue within 2 years in order to get a judgment from the court and extend the life of an unpaid debt. However, this time period could extend as far as 20 years depending on the circumstances.  The Financial Consumer Agency of Canada has information about how long certain information stays on your credit report. However, you will likely need to contact the credit reporting agency directly (Equifax or TransUnion) for information about how long negative information stays on your credit report.

How long a bankruptcy stays on your credit record

A bankruptcy stays on your credit record for 6 years from the date you are discharged, unless you have been bankrupt more than once, in which case it will be on your credit report for 14 years.

Can my file include information from outside Canada?

No. All of the information in the file must come from within Canada. Foreign sources are not allowed.

Improving your credit

There are several ways to improve your credit score, including

• pay all bills on time;
• avoid going over your credit limit; 
• making fewer applications for credit; 
• obtaining your credit report and reviewing it to ensure all information is accurate. 

However, be wary of companies who say they will “repair” your credit. If the information contained in your credit report is true and accurate, no company can change the information, nor can they do anything more than you could do by simply reviewing your report and protesting any inaccurate information directly to the credit reporting agency.

The Financial Consumer Agency of Canada has information about how to improve your credit score.

More information

• Service Nova Scotia  licenses credit reporting agencies, and deals with consumer complaints. Contact them at (902) 424-5200 (in Halifax) or toll-free at 1-800-670-4357, or online at www.gov.ns.ca/snsmr/
  
  
• Financial Consumer Agency of Canada – comprehensive consumer information about credit reports, credit scores, and building a good credit history. Visit www.fcac-acfc. gc.ca or call 1 866-461-3222.

• A credit counselling agency.  Credit counsellors can help you in a number of ways, such as a debt management plan, budgeting, wise credit use, and general money management. The Financial Consumer Agency of Canada  has information about how to find a reputable Credit Counselling service: www.fcac-acfc.gc.ca.
  
  
• Debtor Assistance Program, offered through Service Nova Scotia. Provides free help with managing your money, dealing with creditors, and consumer proposals, but cannot adminster bankruptcies (you need a licensed trustee for a bankruptcy).  Contact the Debtor Assistance Program at 1 800 670-4357 or 902-424-5200, or online at gov.ns.ca/snsmr/access/individuals/debtor-assistance.asp
  
• A trustee in bankruptcy, also called a Licensed Insolvency Trustee, can provide professional advice about your options for dealing with debt.  Trustees are listed in the Yellow Pages  under 'Bankruptcies', or search for 'trustee in bankruptcy' online.  You can also get a listing of local trustees from the Office of the Superintendent of Bankruptcy at 1 877 376-9902 (toll free) or osb.ic.gc.ca
  
  
• Office of the Superintendent of Bankruptcy - regulates bankruptcies, oversees and licenses trustees in bankruptcy (licensed insolvency trustees), and has helpful general information for debtors and creditors
  Website  www.osb.ic.gc.ca
  Phone: 1 877 376-9902 (toll free)

Default

Most people who buy a home need to borrow money from a bank or other financial institution to help cover the purchase price of the home. Usually the loan is secured by a mortgage on the property.  If you default on your mortgage your lender may take legal steps to foreclose on your property.

Default means you have broken the mortgage terms. The most common default is not making mortgage payments when they are due.

Failure to make mortgage payments is not the only form of default. Mortgages have many promises the borrower must follow. Breaking any of these promises can be a default. Some mortgages even allow the lender to demand repayment of the mortgage in full and subsequently foreclose at any time at their discretion without default.

Most mortgages have an ‘acceleration clause’, which usually says that if you miss a payment the entire amount owing on the mortgage is payable right away.

Can the lender take my house if I miss payments?

The lender can start the foreclosure process if you default on your mortgage. Default means you break any of the terms of your mortgage, including falling behind on mortgage payments.

When you arrange a mortgage, it is a contract between you and the lender, where you agree to pay back the principal and interest according to a set schedule. You are the legal owner of the house, but the lender will record the mortgage with the Land Registry, to protect their interests. The house is security for the loan. If you do not make payments as scheduled, the lender has the legal right to force a sale of the house. 

Lenders usually do not want foreclose, and will make reasonable efforts to get you back on track so you can keep your home, including refinancing or setting up a payment plan. Talk to your lender right away if you are having trouble making your mortgage payments. Do not wait until legal proceedings have started against you.

Demand Letter

Demand letter: Before taking legal action the lender or their lawyer will usually send you a demand letter.  By the time a Demand Letter is sent the lender has usually already hired a lawyer, which will increase the amount of money the lender is looking for to bring the mortgage up to date.

A demand letter:

• tells you why you are in default (for example, you have missed payments)
• tells you the amount you owe. This usually includes arrears and legal costs
• gives you a deadline (often 10 days) for making the payment
• says it is your last chance to pay before the lender takes legal action.

If you get a demand letter:

• Call the lender or their lawyer right away. Try to negotiate with the lender or their lawyer to get your mortgage back on track if possible
• Ask whether you can refinance, to lower your mortgage payments and pay them over a longer period
• Try speaking with a new lender to see if you can get a new mortgage to pay off the original mortgage
• Get help from a credit counsellor or licensed insolvency trustee
• Consider putting your property up for sale.

Notice of Action and Statement of Claim

This is formal notice that the lender is foreclosing, and that they have started the court process.

Notice of Action and Statement of Claim: If you do not respond to a demand letter before the deadline in the letter, or cannot negotiate an agreement with the lender, the lender, may start the foreclosure process.

The lender starts foreclosure by having a legal document called a Notice of Action and a Statement of Claim filed with the Supreme Court of Nova Scotia and delivered to you. They are required to deliver this notice to you in person (‘personal service’). It is not something they may drop off in your mail box or courier to you, unless the lender has applied to the court to get permission to have you served (notified) in an alternative way, called substituted service. However, a court generally only grants substituted service if the lender proves to the court that they have tried all reasonable ways to serve the borrower in person.

It is not a good idea to evade personal service as this will increase the lender’s legal costs, and so will increase the amount the lender is looking for when foreclosure is complete.

A Notice of Action is a court document that tells you that the lender is starting a legal process against you because you broke the terms of your loan or mortgage. It tells you the basics of who is involved in the foreclosure process, and how long you have to file a defence.

A Statement of Claim is a court document attached to the Notice of Action. The Statement of Claim outlines the details of what the lender is claiming against you in court. It may include the following:

1) The date of the mortgage
2) Details of the registration of the mortgage at the Registry of Deeds or Land Registration office
3) The property involved
4) Details of the default (for example, you defaulted because you did not make a payment or broke some other term of the mortgage)
5) Details of any agreement(s) that might have changed your mortgage
6) The total amount outstanding on the mortgage or amount unpaid. This will usually include the principal balance, interest, property taxes, legal fees and out-of-pocket expenses of the lender, generally known as “protective disbursements”
7) A statement asking for foreclosure and sale of the property (‘Order for Foreclosure, Sale and Possession’) if the total amount of the mortgage, interest and costs are not paid
8) A statement asking for a deficiency judgment to cover the balance of the loan if the property is sold for less than what is owed to the mortgage lender.

The Notice of Action and Statement of Claim forms come from Nova Scotia’s Civil Procedure Rules. The rules are available online at courts.ns.ca

Options if you get a Notice of Action and Statement of Claim

Once you are served the Notice of Action and Statement of Claim you may:

• pay the money (which usually means paying the entire principal, interest and costs - including legal costs); or
• file a defence to the claim within the required time; or
• apply to court, within the required time, to ask to have the foreclosure process discontinued. You would need to pay up all the arrears and legal costs. The right to have the foreclosure discontinued is only available once during the life of your mortgage.

Filing a defence

The form and general instructions for filing a defence are on the Nova Scotia Courts website under How to Defend an Action on the Supreme Court-Court Forms page. Try to get legal advice if you want to file a defence. Contact a lawyer in private practice, or there is a Free Legal Clinic in Sydney and Halifax, for people who are going to Supreme Court without a lawyer.

If you want to file a defence, you must file it within the required time.

If you disagree with what is in the Notice of Action & Statement of Claim, you should file a defence with the Supreme Court of Nova Scotia within the following time:

• 15 business days if you are served in Nova Scotia
• 30 business days if you are served outside of Nova Scotia but within Canada; and
• 45 business days if you are served outside of Canada.

The days are business days, so weekends and weekdays when the court is closed are not included. The 15 day timeline applies to most circumstances, so do not miss the deadline.

If you choose to file a defence, it should include why you feel your property should not be foreclosed on.

Some examples of defences may include:

1) That the mortgage was not signed
2) You never received money from the lender
3) You repaid the lender
4) You have not broken any mortgage terms and you are not in default.

You must file your defence with the Supreme Court of Nova Scotia and serve the lender or their lawyer personally with a copy of your defence. The court will then give you a court date for you to dispute the lender’s claim to a foreclosure.

If you do not file a defence

If you do not either file a defence or apply to court for other relief, such as applying to court to have the foreclosure discontinued, the lender will apply to a judge for an Order for Foreclosure, Sale and Possession of the property. This court application is called a motion, and is usually ‘ex parte’, which means without notice to you. The idea is that you were already notified of the court process when you got the Notice of Action and Statement of Claim and chose not to participate by not filing a defence.

At the hearing for the Order for Foreclosure, the judge can:

• Ask for more information or better proof of the mortgage debt
• Order that others be there before the judge hears the case
• Direct the sale of the property, making an order of foreclosure and sale
• Make an order stating what should happen concerning the payment of the money owed.

Can foreclosure be stopped?

Maybe. Some possibilities are: negotiating; redeeming the mortgage; reinstating the mortgage; filing a successful defence.

Negotiate: The easiest way is to negotiate with the lender. If you have missed payments, contact the lender and talk about your situation. The lender may be willing to give you time to catch up with payments. You may be able to refinance, so that you have lower mortgage payments over a longer term. Never ignore the lender’s letters or inquiries.

Redeem: You may “redeem” the mortgage by paying the full amount owing on the mortgage, including the interest, principal and any penalties or costs, before the sale of your property at public auction. This way you keep the equity built up in your home.

This may mean:

• getting a new mortgage from a different lender in order to pay out the first mortgage. This can be difficult. Sometimes a mortgage broker can help. The Financial Consumer Agency of Canada has general information about mortgages that you might find useful; or
• selling your property before the auction for more than what is owed to the lender.
  

Apply to Supreme Court to discontinue the foreclosure (‘reinstate’ your mortgage): This option can only be used once during the life of a mortgage. You can apply to court to have a foreclosure action discontinued (have the mortgage ‘reinstated’). This is a right under a provincial law called the Judicature Act. If the default is non-payment of the mortgage, you will have to pay all the arrears and the lender’s legal costs (legal fees and out-of-pocket expenses). If the default is a breach of a covenant (promise), you will have to perform the promise, and pay the lender’s legal costs. You can apply to court to discontinue the foreclosure even if the lender is refusing to accept payments. However, you can only apply to court to discontinue the foreclosure before the lender has made the motion and obtained a court order for foreclosure and sale (see ‘If I do not file a defence’).

Defend the action: if you file a successful defence, the foreclosure process may be stopped.

Will bankruptcy stop foreclosure?

No, the lender can still foreclose if you are in default of the mortgage terms. However, it may help you to declare bankruptcy on other debts so that you may concentrate your finances on paying the mortgage, and may deal with a deficiency claim if the property is sold at public auction and there is a shortfall. You should talk to a licensed insolvency trustee about your financial situation and the options open to you. Go to the bankruptcy page for more information, or contact the federal Superintendent of Bankuptcy.

Can I still sell my house?

Yes, you may try to sell the house or property up until a foreclosure order has been issued by the court.

Can the lender refuse payments once a court process starts?

Nova Scotia’s Judicature Act gives you the right to discontinue the foreclosure process by paying all outstanding arrears and costs owed to the lender or performing the covenant (promise) that is being broken. This is also called reinstating the mortgage. You can do this even if the lender is refusing to accept payments. This can be done up until an Order for Foreclosure, Sale and Possession has been issued (made) by the court. This right is only available once per mortgage. You must apply to the Supreme Court of Nova Scotia. You should get legal advice from a lawyer if you can, to get help with your application. Contact a lawyer in private practice, or there is a Free Legal Clinic in Sydney and Halifax, for people who are going to Supreme Court without a lawyer.

The court has no power to discontinue on payment of arrears and legal costs if there is a second foreclosure proceeding under the same mortgage (i.e. where you reinstated the mortgage and default again, and the lender starts foreclosure proceedings for the new default). If the mortgage has been reinstated once before, the only way to stop the new process is through agreement with the lender or by paying the entire amount of the mortgage, plus interests, costs and out-of-pocket expenses.

Who are the plaintiffs and defendants in a foreclosure

Plaintiff: this is the lender who started the foreclosure process. Their lawyer will be at the court hearing on the lender’s behalf.

Defendants may include:

• You, and any other borrowers on the mortgage
• Guarantor, if someone acted as a guarantor for the mortgage
• Trustee in Bankruptcy, if the borrower is bankrupt, or was bankrupt during the mortgage
• Owner of the property (any new owner).

If no defence is filed, usually only the plaintiff’s lawyer will be at the foreclosure court hearing.

Sale of the Property

If the lender is successful on their motion and got an Order for Foreclosure, Sale and Possession, the lender will arrange for sale of the home, usually through public auction by the Sheriff.

Public Auction:

After the court grants an Order for Foresclosure, Sale and Possession, there will be a Sheriff’s sale by public auction. The auction is done by the Sheriff, or by any other person given that power by the court. Recently, the court in Nova Scotia has allowed the sale to be done by an experienced foreclosure lawyer in order to reduce fees associated with the Sheriff.

The property will be sold at a public auction in the county where the property is located.

The plaintiff (lender or their lawyer) must:

• advertise the sale of the property in a local newspaper in the area where the property is located. There must be at least two advertisements in a local newspaper, the first at least 15 days before the sale, and the second within 7 days of the sale;
• at least 15 days before the sale, notify the property owner(s) and the borrower(s), if they are not the same person, of the date, time and place of the sale. Notice to the borrower can be sent by regular mail.

The notice will contain the time and place of the auction.

Private Sale:

Although unusual, if the lender has an offer to purchase the property from a third party and all subsequent encumbrancers agree with the sale, the lender may apply to the court for approval to sell the property privately. However, in most cases the property will be sold at a public auction.

Can the lender buy the property on foreclosure

Yes, the property is sold to the highest bidder at a public auction.

Public Auction process

The Sheriff, or person appointed by the court, will hold the public auction at the time and place in the notice. If you wish to bid, you must go personally or send someone to bid on your behalf.

The successful bidder will have to pay 10% of the sale price at the end of the auction and then has 15 days to pay the rest If you are the successful bidder, and you have not paid the rest within the 15 days, you will lose the 10% deposit, as it will be applied against the amount owing to the lender. You cannot recover this money.

The rules requiring 10% down payment at the auction are firm. If you are the highest bidder and do not have the full 10% in guaranteed form (cash, certified cheque or solicitor’s trust cheque) with you at the auction, your bid may be unsuccessful and the property will go to the next highest bidder. The Sheriff has the discretion to allow the highest bidder a short amount of time to get the funds but is not required to do so and may refuse. Even if the Sheriff provides you with a short time to get the funds, in practice it is as little as 20 minutes. Therefore, if you want to be the successful bidder, you should ensure you have the 10% available at the auction.

If the lender is the successful bidder they may still ask for a Deficiency Judgment.

Deficiency Judgment explained

Deficiency: Following the sale, a lender may apply to the court for a Deficiency Judgment, which is a request by the plaintiff to get a judgment against the borrower for the shortfall amount; that is, the difference between the amount owing on the mortgage (plus interest, costs, out-of-pocket expenses, Sheriff fees, property taxes), and the amount received from the sale of the property.

The lender must show that the amount obtained from the sale of the property is a fair market price. This is determined either by actual sale or though an appraisal.

The borrower and anyone else who may have to pay the deficiency amount will get at least 10 days’ notice of the deficiency hearing. The plaintiff has 6 months to apply for a Deficiency Judgment, from the date of the Sheriff’s sale.

What if the sale price is more than the amount owing

Surplus: If the sale of the property brings in more money than the amount of Sheriff’s fees and outstanding taxes and the amount owed to the plaintiff, the surplus is given to the Accountant General of the Supreme Court. It will be distributed among those who have filed claims against the property and those who are owed money by the borrower (known as subsequent encumbrancers). They can apply to the court to be paid and are paid according to priority. Before these people are paid the Sheriff must pay any outstanding property taxes from this surplus. If there is still a surplus, any party involved with the foreclosure, including the borrower, may apply to the court or judge to receive the surplus. Before applying however, each party must file an affidavit (sworn document) to prove they are entitled to a claim. The court or judge may then order the distribution of the surplus to the parties by priority.

You should try to get legal advice if you wish to make a claim for surplus.

Can the sale be overturned

The court has the power to overturn the sale in exceptional cases. An example would be if the directions in the foreclosure order were not followed.

What happens once the property is sold

Once the property is sold and the amount due has been paid to the lender , the Sheriff files a report with the court as soon as possible. This report states that the property has been sold, the name of the successful bidder, the purchase price, how the money was distributed and that the Sheriff has delivered the deed to the property to the successful bidder.

What happens once the Sheriff's report is received by the court

Once the report is filed, the lender will apply for an Order Confirming Sale. This order states that the sale has taken place and that the foreclosure is complete. The lender must also file: 1) The sheriff’s report and 2) An affidavit (usually prepared by the plaintiff’s lawyer) stating that the advertisement was done and notices were sent to all those who had interest in the property.

How soon do I have to leave the property

You should be ready to move out on the date of the public auction.

If you are a homeowner, you must leave the property once the successful bidder completes the purchase, unless the new owner says otherwise.

The Order for Foreclosure, Sale and Possession usually gives the lender the ability to ask the Sheriff to deliver possession of the property. This means the lender may require that you leave as soon as the Order for Foreclosure, Sale and Possession has been issued (made).

However, lenders generally don’t request vacant possession (require that you leave) until the date of the sale at public auction. When a lender sends the notice of sale under public auction to the homeowner, they usually advise that the homeowner must vacate (leave) the premises on or before the date of the sale at public auction.

Once the property has been sold on the date of the public auction, you may ask the new owner for permission to stay in the property. However, they have no obligation to let you stay and therefore you should be prepared to move out on the date of the public auction.

If you are a tenant, how soon you move out depends on the type of tenant you are. If you are a residential tenant (for example, renting an apartment) you must be given notice according to the the Residential Tenancies Act (the earlier of 3 months or the expiry of the lease under any written lease agreement – such as a fixed term lease). Contact Residential Tenancies at 902-424-5200 or 1-800-670-4357, or online at gov.ns.ca/snsmr/access/land/residential-tenancies.asp for more information. If you are a commercial tenant (a place rented for business) you must move out the day of the foreclosure sale, unless the new owner tells you otherwise.

The successful bidder becomes owner of the property once the full purchase price has been paid and the Sheriff gives him or her the deed. The foreclosure is complete once the Confirmatory Order is granted.

How long foreclosure takes

If no defence is filed and the lender goes through the normal steps, foreclosure takes 2 to 3 months from the filing of the Notice of Action and Statement of Claim to the concluded sale. It may take longer, depending on the court schedule.

The 2 to 3 months consists of:

1. The 15 days to file a defence after being served the Notice of Action (longer than 15 days if you are served outside of Nova Scotia, as set out above).
2. If no defence is filed, the lender can schedule the Motion to court for Order for Foreclosure, Sale and Possession, with 2 days’ notice.
3. The 15 days’ notice required between the Order for Foreclosure, Sale and Possession and advertisement for the sale at public auction.
4. The 15 day time limit for the successful bidder at the auction to pay the full purchase price.

The days are business days, so weekends and weekdays when the court is closed are not included. The rest of the time involved will depend on how quickly the lender decides to proceed, and the availability of a judge to hear the case and grant the orders.

If a defence is filed, the above timeline can vary a lot. The lender may make a motion to court for summary judgment, and how long things will take will depend on the success of the defence, as well as the court schedule.

More help and information

For help and information:

• Your lender: read your mortgage document carefully, and talk with your lender about options you may have if you are having financial problems
  
  
• A lawyer: It is best to try to talk with a lawyer if you are unsure about what to do.
  
  Nova Scotia Legal Aid does not generally deal with foreclosures, although you should contact them directly to see if they can help in your situation - go to nslegalaid.ca, or look under 'Legal Aid' or 'Nova Scotia Legal Aid' in the telephone book.
  
  Otherwise, you would need to speak with a lawyer in private practice. The Legal Information Society offers a Legal Information Line and Lawyer Referral Service if you need help finding a lawyer. Through this service you can get free legal information, and you may be referred to a lawyer who will meet with you for up to 30 min for a fee of $20 + tax, after which regular fees would generally be charged. The number is 902-455-3135 in the Halifax Regional Municipality, or toll free at 1-800-665-9779. 
  
  There is also a Free Legal Clinic in Sydney and Halifax, for people who are going to Supreme Court without a lawyer.
  
  
• More information about the foreclosure process:
  
  • Nova Scotia’s Civil Procedure Rules (court rules & forms that apply in the Supreme Court of Nova Scotia);
  • Supreme Court of Nova Scotia, Practice Memorandum - Foreclosure Procedures;
  • Nova Scotia's Judicature Act
    
• A trustee in bankruptcy, also called a Licensed Insolvency Trustee can provide professional advice about your options for dealing with debt.  Trustees are listed in the Yellow Pages  under 'Bankruptcies', or search for 'trustee in bankruptcy' online.  You can also get a listing of local trustees from the Office of the Superintendent of Bankruptcy at 1 877 376-9902 (toll free) or osb.ic.gc.ca
  
  
• Office of the Superintendent of Bankruptcy - regulates bankruptcies, oversees and licenses trustees in bankruptcy (licensed insolvency trustees), and has helpful general information for debtors and creditors
  Website  www.osb.ic.gc.ca
  Industry Canada
  Phone: 1 877 376-9902 (toll free)

• A credit counselling agency.  Credit counsellors cannot administer bankruptcies or consumer proposals, but can help you in a number of ways, such as a debt management plan, budgeting, wise credit use, and general money management. The Financial Consumer Agency of Canada  - has information about how to find a reputable Credit Counselling service: www.fcac-acfc.gc.ca.
  
  
• Debtor Assistance Program, offered through Service Nova Scotia. Provides free help with managing your money, dealing with creditors, and consumer proposals, but cannot adminster bankruptcies (you need a licensed trustee for a bankruptcy).  Contact the Debtor Assistance Program at 1 800 670-4357 or 902-424-5200, or online at gov.ns.ca/snsmr/access/individuals/debtor-assistance.asp
  

• Financial Consumer Agency of Canada, or call 1 866 461-3222.  Lots of consumer information on many money related topics.

What if I have a gift card that has an expiry date?

Businesses are not allowed to issue or sell a gift card that has an expiry date. You can redeem the gift card as if it had no expiry date. There are some exceptions. Expiry dates are allowed on gift cards:

• designed for charitable, marketing, advertising or promotional purposes;
• for a good or service, such as a haircut or spa treatment, if the gift card was issued before February 1, 2010 and has no dollar value on it.

 Also, the gift card rules do not apply to prepaid telephone cards or prepaid credit cards such as Visa or Mastercard.

Can a business charge a service fee for a gift card?

Businesses are not allowed to charge service fees for gift cards. If you are charged a service fee for a gift card you can demand a fee refund. Your refund request must be in writing. The business must refund the fee within 15 days of your request.

Businesses are allowed to charge a fee to replace a lost or stolen card, or to customize a gift card. A fee is also allowed if the gift card is for a charitable purpose, or for marketing, advertising, or promotion.

Information a business must give about a gift card

When you buy a gift card a business must tell you, in writing:

• how to use or replace the gift card, and any rules that apply;
• about any fees or expiry date;
• how and who to contact for information about the card, including your card balance
• about any return policy for items purchased using the gift card.

Make sure you understand all the card's terms and conditions when you buy it, including any rules about refunds, returns or exchanges.

More information

For more information consumers or businesses can contact Service Nova Scotia at www.novascotiagiftcards.ca, or call 1 800 670-4357.

For further information on consumer protection generally visit Canada's Office of Consumer Affairs (OCA) through Industry Canada at www.ic.gc.ca.

What information must be in the contract?

 Your gym membership contract must be in writing, and must include the following:

• Your name and address, and the name and address of the business;
• a clear description of what services you will get;
• the price of the services; and
• rules for renewing or cancelling the contract.

If you are paying by installments, the contract must tell you the number of payments you have to make, the amount of each payment, and any additional cost for paying by installments.

If any of the services are not available when you sign the contract, then the contract must give the date when services will be available.

Read the contract very carefully, and make sure you understand it before you sign.

Can my gym charge an initiation fee?

Yes. A gym can charge an initiation fee on top of the membership fee. However, your gym cannot charge you more than one initiation fee, or charge an initiation fee that is more than double the membership fee.

Can I pay by instalments?

Yes. A gym must offer you the option of paying membership fees and any initiation fee in monthly payments over the contract term.

If you pay by instalments the gym is allowed to charge you up to 25 percent more than the total would be if you paid up front. The contract must include the number of payments you have to make, the amount of each payment, and any additional cost for paying by instalments.

Is there a cooling off period?

Yes. There is a 5-day cooling-off period. This gives you a chance to try out the facilities at the gym or fitness club, and change your mind about joining if you decide it is not right for you.

You can cancel a gym membership contract within 5 days of signing the contract, or within 5 days of the services becoming available, whichever is later. You do not have to give a reason for cancelling. You must cancel the contract in writing. You may want to deliver the written notice of cancellation in person, and get a signature proving receipt, or send it by registered mail. Registered mail is a good idea as you will have proof that it was delivered. Keep a copy of the proof of cancellation.

If you cancel within the 5-day cooling-off period you are entitled to a refund of any money you paid. The gym must refund your money within 20 days of cancellation of the contract.

What if I don't want to renew my membership?

A gym contract cannot be longer than one year. However, your contract may be renewed automatically if the gym follows certain rules.

The gym must send you a written reminder that the gym has a right to renew your contract automatically if you do not respond to the renewal notice. They must send the renewal notice at least 30 days, but not more than 90 days, before the end of the contract.

Do not ignore the renewal notice. If you get a renewal notice you must notify the gym in writing if you do not want to renew the contract. You must notify the gym before the contract ends. You may want to deliver your notice of non-renewal in person, and get a signature proving receipt, or send it by registered mail. Keep a copy for your records.

More information

Service Nova Scotia helps resolve consumer issues, and administers the Consumer Protection Act. Contact Service Nova Scotia at 902-424-5200 or 1 800 670-4357, or visit Service Nova Scotia online.

For further information on consumer issues visit Canada’s Office of Consumer Affairs (OCA) at www.ic.gc.ca

What is a patent?

Patents are federal government grants that award inventors the right to prevent others from making, selling or using their inventions from the day the patent is granted for a period of twenty years from the date the patent application is filed. An inventor must apply for and receive a patent for each country in which he or she wishes to have such a right.

What makes an invention patentable?

Under the Canadian Patent Act, protection is available for any new and useful art, process, machine, manufacture or composition of matter or any new and useful improvement of an existing invention. In order to qualify for a patent, the invention must be new, useful and unobvious. In order to be new, the invention must be the first of its kind in the world. The invention must not have been previously disclosed to the public by anyone other than the inventor. Even disclosure of the invention to the public by the inventor before the patent application is filed can in some circumstances (such as trade exhibitions) prevent the invention from being novel and ruin the potential for it to be patented. To meet the second criteria, usefulness, the invention must be functional and operative. The invention must add value to the existing technology. In order to meet the third requirement, that the invention be unobvious, the invention must be one that would not have been obvious to a person of ordinary skill working in the art. A Person of “ordinary skill in the art” could be someone well-versed with the technology through education and/or experience in the area. The reference point for a comparison to existing technology is any published research, literature, existing inventions (whether patented, non-patented or having an expired patent) and in some cases existing traditional knowledge. This gamut of pre-existing knowledge is called prior art.

Rights in a patent are not on the entire invention/product/process as a whole, but is restricted to the "claims" made. In other words nothing stops someone from making a patent application for an improvement on a common object like a pen or stapler, so long as he restricts his patent rights, via "claims" to the new, useful and unobvious features of the invention/improvement. 

Inventors can search the Canadian Patent Database to determine what inventions are already patented in Canada.

How and when do I apply for a patent

Patents are granted to the first inventor to file an application. For this reason it is wise for an inventor to file for a patent as soon as possible, but not so soon in the development process that important features of the invention are not yet known. Also, as mentioned above, disclosure of the invention prior to filing the application may ruin the potential for a patent in some cases.

Making a patent application can be a lengthy and complex process and inventors often seek professional help from a registered patent agent. A list of registered patent agents is provided on the Canadian Intellectual Property website. Canada Business also has a list available. Separate applications must be filed for each country in which protection for a patent is desired.

What is a trademark?

Trade-marks are words, designs, symbols, two-dimensional or three-dimensional forms or any combination of these things used in association with the wares and/or services of one person, organization or business to distinguish their wares and/or services from those offered by others in the marketplace. The Canadian IP Office has also now started recognizing sound(s) as trademarks.

Every trademark must be identified with a set of goods or services. The trade mark must either already be in use or intended/proposed to be used. The date of first use can often become a significant factor in claiming trademark rights.

In Canada, proper trade-marks are entitled to protection whether they are registered with the Canadian Intellectual Property Office or not.

Is my trade name a trademark?

Trade names are not the same as trade-marks. Trade names are names under which a business operates, whether or not it is the company name, while trade-marks are associated with the wares and/or services that a business sells. A trade name and a company name may be registered as trade-marks in some cases if they are used as trade-marks. It is important to note that the registration of a company or trade name with the Registry of Joint Stock Companies does not protect it as a trade-mark.

It is possible to have several trademarks under a trade name (which itself may or may not be a trademark). We often see this with consumer product companies where several sub-brands exist.

Should I register my trademark?

Registration of a trade-mark is not mandatory, but it does make it easier for the trade-mark owner to prevent others from using the trade-mark, or similar ones, in association with the same or similar wares and/or services. This is because a trade-mark registered with the Canadian Intellectual Property Office provides its owner exclusive use of that trade-mark in association with the specific wares and services associated with it in Canada for a term of fifteen years and this term is renewable indefinitely.

Trademarks are the only form of intellectual property that can be in force perpetually. Since trademarks are brand/product identifiers this is even more significant!

The registration process can also help a business ensure that it is not infringing the trade-mark of another business. Registration has another benefit in that it provides public notice of the business ownership of the trade-mark and this may discourage others from adopting similar ones. An unregistered trade-mark may be recognized by the courts as belonging to an owner in some circumstances; however, such protection is generally limited to the geographical area, such as Halifax, in which the owner uses the trade-mark and the court proceedings required to establish the protection may be costly.

A trade-mark agent may assist persons, organizations and businesses in determining whether a selected trade-mark has the potential to be registered and can assist with the application process. A list of trade-mark agents is provided on the Canadian Intellectual Property website. Separate applications must be filed for each country in which protection for a trade-mark is desired.

What types of trademarks may not be registered?

 There are a number of specific types of trade-marks that may not be registered. These include trade-marks that would be likely to cause confusion in the minds of average consumers due to their similarity with previously registered trade-marks. Also, trade-marks that are clearly descriptive or deceptively misdescriptive of the wares and/or services with which they are to be associated are not permitted, nor are trade-marks that indicate the geographical origin or mode of production of the product. Further, there are many other restrictions, including trade-marks that make use of national flags and coats of arms, or that use offensive imagery or words.

What is a copyright?

Copyright grants the copyright owner the exclusive right to produce, reproduce, perform or publish their original work, or any substantial part of it, in Canada and to allow others to do the same. Copyright protects an original literary, dramatic, musical or artistic work and also applies to other subject matter, such as performers' performances, communications signals, computer programmes and sound recordings. The person who creates the original work is called the author of the work.

As a general rule, copyright extends for the lifetime of the author, performer or maker of the work and for 50 years after their death. Specific works that are no longer subject to copyright are said to be in the public domain and may be copied, performed and published, generally speaking.

Who owns copyright and should copyright be registered?

 The first owner of a copyright is the author of the work, unless the work is subject to an exception, such as when the work is created in the course of employment, or it is a photograph.

When and how does copyright arise and should it be registered?

Copyright arises automatically when a person creates an original literary, dramatic, musical or artistic work or other subject matter. In order for copyright to exist, the work must be fixed in a material form, for example, a poem must be written down. Copyright does not protect ideas, concepts, facts or information. Generally speaking, neither does it protect slogans, most titles, plots, or methods, such as a method of teaching.

It is also important to note that copyright is acquired for an expression of an idea, and not the idea itself. For instance, a particular idea or theme behind a romantic poem is not subject to copyright, but the expression of the idea is. Therefore, in a class of 15 students who write their own versions of a story, each student would have a copyright in their own version.

Copyright may be registered with the Canadian Intellectual Property Office, and while copyright arises even without registration, registration is notice to the public that copyright in the work is claimed by the registered owner. Further, it creates the legal presumption that the registered owner is the true owner of the copyright in that work. Separate applications must be filed for each country in which protection for a work is desired.

When may a person copy material that is subject to copyright?

The general rule is that persons may not copy or publish works that are subject to copyright. However, there are some exceptions. One is the 'fair dealing' exception that allows limited portions of works subject to copyright to be copied for the purpose of private study, research, commentary or criticism, provided the source of the work is provided along with the name of the author, performer, maker or broadcaster if mentioned in the source. How much use of a work will be considered fair dealing depends on the specific circumstances of each use. Plagiarism issues often revolve around the amount of copyright protected material used.

In the case of material used for study, particular schools and universities may have entered into a photocopying licensing agreement that allows students and faculty to photocopy certain material that would otherwise constitute copyright infringement. If you have concerns about whether the use of a copyrighted work would be copyright infringement in such a case, the school administration or library should be able to advise you about its copyright policy. An exception also exists for the purposes of reporting.

With respect to images posted on the internet, they are subject to the same copyright protection as images published in any other form. Regarding copying musical works, sound recordings or performers' performances, the Copyright Act allows persons to copy music onto an audio recording device for their own private use.

When may a person perform material that is subject to copyright?

Regarding the public performance of musical works, sound recordings, theatrical works and other subject matter, performers or presenters must ensure that the rights to perform or present the works subject to copyright are secured either through the venue in which the performance will occur or through direct contact with the author or owner of the work, or their union or other representatives. In certain instances, a license may be needed.

What are moral rights?

Under the Copyright Act, an author has a moral right in the work they create. This moral right is the right the author has to the integrity of their work, and the right, where reasonable in the circumstances, to be associated with it as its author, or under a pseudonym, when that work is reproduced, performed, adapted, communicated to the public or otherwise dealt with as outlined in the Copyright Act. Moral rights are infringed when, to the prejudice of the honour or reputation of the author, the work is distorted, mutilated, or otherwise modified, or used in association with a product, service, cause or institution without permission. Moral rights also give the author the right to remain anonymous. Unlike copyrights, moral rights cannot be assigned to other owners, but they may be waived.

What is an industrial design?

 Industrial designs are the features of shape, pattern, configuration or ornamentation that give an article visual appeal, such as the shape of a lamp or a chair. Industrial designs do not include features of an article that are dictated solely by a utilitarian function

Should an industrial design be registered?

Registration provides the owner with the sole right to make, import for the purpose of trade or business, sell, rent, offer or expose for sale or rent any article produced with the same or a substantially similar appearance for a period of ten years from the date of registration in Canada. Industrial designs can only be protected through registration with the Canadian Intellectual Property Office; however, it is important to note that if fewer than fifty copies of the article using the design are produced, the design may be protected as an artistic work under copyright law. Under certain circumstances, once more than fifty of the product based on the design is produced, copyright may no longer prevent others from producing products with the same design and protection. Also, some protection for a product design may exist under the trade-mark law of distinguishing guises in some circumstances.

When should an industrial design be registered?

The general rule is that an application for an industrial design must be filed within one year of the design being offered for commercial sale or displayed to the public anywhere in the world. Separate applications must be filed for each country in which protection for an industrial design is desired.

Some key intellectual property tips

• If you can, consult with a lawyer who does intellectual property law;
• Do a search in all jurisdictions (places) where you plan to market and sell your product.  This will minimize the risk of infringing on someone else's intellectual property;
• If you want to launch your product or process in multiple jurisdictions, make sure you meet all requirements in each jurisdiction.  To save time and money consider whether you can take advantage of a convention or treaty to file in multiple jurisdictions, rather then filing in each individual country;
• Register your intellectual property.  Registration is proof of ownership and acts as notice to the public. In the event of litigation, the registrant is often presumed to be the owner, where a registered and unregistered IP compete;
• Once you register your intellectual property, be diligent about paying the necessary renewal fees;
• Draft well-crafted contracts for  service providers, employees, contractors etc. If you are using your design, work, invention etc. ensure that fact is stated in the contract to prevent misappropriation.  Add confidentiality clauses to contracts. Someone may not steal your IP directly, but may certainly be able to describe it to somebody else - a confidentiality clause may help prevent that. This would also help prevent misappropriation of trade secrets, client/vendor lists and so on - all of these help build your business and its IP.

More information

More information on each of these types of intellectual property is available on the Canadian Intellectual Property Office website at http://cipo.gc.ca, and further information may also be available through Canada Business.  The Canada Business general inquiry telephone number is 1-888-576-4444, or visit www.canadabusiness.ca.

What is a payday loan?

A payday loan is a loan of $1500 or less. The average payday loan in Nova Scotia is for about $430.   The money is borrowed for short periods, from a few days to a few weeks. The loan term cannot be more than 62 days.  Privately-owned companies offer payday loans in stores and online.

To get a payday loan you usually give the lender:

• a cheque to cover the loan plus fees, postdated to your next payday; or,
• permission to take the total amount owing out of your bank account on your next payday (this is called pre-authorized debit).

How much can a lender charge for a payday loan?

In Nova Scotia the most a payday lender can charge is $22 for every $100 you borrow, as long as you pay the loan back on time. This is called the maximum 'total cost of borrowing'.

The total cost of borrowing

Your total cost of borrowing is the total amount the loan will cost you, if you repay the loan on time.

The cost of borrowing includes:

• interest
• administration fees
• commissions
• cheque cashing fees
• pre-authorized debit fees
• fees for issuing or loading a cash card
• cash card transaction fees
• agent or broker fees.

Whether they are called fees, commission, interest or something else, it all adds up to the total amount that the loan will cost you.

The total cost of borrowing cannot be more than $22 for every $100 you borrow. For example, if you borrow $300, a payday lender cannot charge you more than $66 as the total cost of borrowing. In this example the most you would be required to repay is $366, if you repay the loan on time. If you do not repay the loan on time, you will be charged interest on the amount you still owe. The interest rate will be the amount specified in your loan agreement for default, up to a maximum of 60%. In addition, you may be charged a default penalty of up to $40.

Payday lenders must have a poster in their store giving an example of the total cost of borrowing, like the table below:

Example:	$300 loan for 14 days
Principal amount:	$300
Total Cost of borrowing:	$66
Total to repay:	$300 plus $66 = $366
Annual Percentage Rate:	APR = 573.57%

 

Who licenses payday lenders?

Payday lenders are regulated and licensed by Service Nova Scotia to offer, arrange or give payday loans in Nova Scotia. Lenders must follow the rules in the Consumer Protection Act and regulations in order to get, keep or renew a license. Licenses must be renewed every year. As of May 1, 2012, internet payday lenders are also regulated in Nova Scotia, and must have a permit from Service Nova Scotia to arrange or provide payday loans online in Nova Scotia.

In certain situations Service Nova Scotia may refuse to give or renew a license, or may suspend or cancel a license.

Call Service Nova Scotia at 1 800-670-4357 to check whether a particular payday lender is licensed to operate here.

Information the lender must give you

A payday lender must give you the following information:

• the lender's contact information
• contact information for Service Nova Scotia
• the date the loan is made
• the total amount of money you are borrowing
• the total amount you must repay, and when it is due
• if you are paying by instalments, the amount of and due dates of each payment
• details of any fees, charges, commissions, interest, penalties for the loan
• your total cost of borrowing, including interest and other fees
• the maximum cost of borrowing allowed ($22 per $100)
• the annual percentage rate ('APR')
• the interest payable as a percentage rate
• charges you would have to pay if the loan is not repaid by the due date, including the maximum charge allowed ($40 per loan, maximum interest on outstanding balance is 60%)
• any interest payable for extending or renewing the loan
• your rights if the payday lender charges more than they are allowed to charge
• how to cancel your payday loan, including the form to use to cancel
• a copy of your loan agreement.

The information must be clear, easy to understand, and in writing.

You and the lender must both sign your loan agreement. Read it carefully before you sign.

If you get a cash card the lender must give you the card terms and conditions in writing, including the amount of credit on the cash card, and any card expiry date or extra charges for using the card at a place other than the payday lender.

Payday loan cooling-off period

A cooling off period is an automatic cancellation period, where you may reconsider your decision and cancel the contract, for any reason you like, without penalty.

Storefront location payday loan:

There is a one day cooling-off period after signing a payday loan agreement. You may cancel a payday loan at any time before the end of business on the day after you get the money or could access the money. This means the next business day. For example, if you get the money on a Friday and the business is closed until Monday, you would have until the end of business on Monday to cancel the loan.

Online payday loan:

You may cancel an online payday loan within 48 hours after you get or could access the money.

There is no penalty for cancelling a payday loan within the cooling-off period, and you do not have to give a reason for cancelling.

Cancelling a payday loan

You may cancel the loan during the cooling-off period, without giving a reason and without penalty.

You may also cancel at any time if:

• you were not told about your cancellation rights
• you were not given all of the information the lender is required to give you (see 'Information the lender must give you').

You must cancel the loan in writing, and repay any money owing. The lender should have given you a form to use to cancel. You may use that form to cancel the loan, or give your own written notice to the lender saying you are cancelling the loan. It is best to deliver it in person, and keep a copy for your records.

A payday lender cannot charge a cancellation fee.

Once you cancel the loan in writing and repay any money owing, or return an unused cheque or cash card, the payday lender must give you a receipt to confirm that the loan has been cancelled.

If you agreed to buy insurance on the loan, and the lender paid the premium, you will also need to pay the pro-rated amount of the insurance premium.

Early repayment

Yes. You can repay the full amount of the loan at any time before it is due.

A payday lender is not allowed to charge a fee or penalty for early repayment. If a payday lender charges you a fee for early repayment, you are entitled to have that fee refunded. Contact Service Nova Scotia if you were charged a fee or penalty for early repayment.

Extending or renewing a payday loan

If you have not paid back everything you owe by the due date, you and the payday lender can make a deal to extend or renew the loan, as long as you are only charged interest. A payday lender can charge interest on an extended or renewed loan, but cannot add other fees or charges.

Other things a payday lender cannot do

 A lender cannot:

• require you to buy insurance in order to get a loan
• require security for a payday loan (for example, make you sign an agreement that says they can take your car if you can't repay the loan)
• require undated or post-dated cheques for more than you would owe on the due date for repayment, including interest and fees
• give you a new payday loan if you already owe money to them
• set the due date for repayment before your next pay day
• charge a penalty or fee if you repay the loan early. You have a right to a refund if you are charged extra for early repayment
• require a wage or other income assignment (for example, make you sign an agreement that says your employer can deduct money from your pay and give it to the lender if you can't repay the loan)
• grant rollovers . A rollover is a second payday loan to pay out an original payday loan which you can't pay, or an extension or renewal of your payday loan that adds extra fees or charges, other than interest. Extensions or renewals that only charge interest are allowed.

Contact Service Nova Scotia for more information or to make a complaint.

What happens if I don't pay back the loan when it is due?

If you cannot pay back the loan when it is due you are in default. 

If you don't pay back the loan when it is due:

• you will be charged interest on the amount you still owe, including the fees, and this interest will continue to build up. The interest rate will be the amount specified in your loan agreement for default, up to a maximum of 60%.
• in addition to the interest, you may be charged a default penalty (fee) of up to $40 
• the payday lender could sell the loan to a collection agency
• the debt could appear on your credit report
• the payday lender or collection agency could sue you for the debt
• the payday lender or collection agency could seize your property, if they successfully sue you
• the payday lender could take money from your paycheques (also called garnishing your wages), if they successfully sue you

A payday lender has the right to sue you for the amount you owe, plus interest and any court fees. You should try to speak to a lawyer if you are being sued.

The payday lender must follow the rules in the Consumer Protection Act and Consumer Creditors' Conduct Act when trying to collect money from you.

A payday lender cannot:

• Make collect calls to you
• Contact you if you have written telling them to contact your lawyer
• Use documents, notices or letters which are made to look like court forms
• Pretend to represent the police or sheriff
• Threaten you or use abusive or intimidating language
• Harass you or your family, for example, by calling every 15 minutes
• Try to collect the debt on a Sunday or any day before 8:00 am or after 9:00 pm
• Give misleading or false information to anyone about you, including your employer
• Threaten or try to make things difficult for you at work, or at any of your family members' workplaces
• Ask you for or require you to enter into a wage assignment, or an assignment of any other kind of income. A wage assignment is a deduction from your paycheque, with the money deducted going directly to the lender.

More information

• If you have questions or a complaint about a payday lender, contact Service Nova Scotia. Service Nova Scotia also offers a free Debt Assistance Program.
  Phone: (902) 424-5200 or 1 800 670-4357 (toll free)
  Website: Service Nova Scotia
• Nova Scotia Utility and Review Board decisions about payday loans: uarb.novascotia.ca
• Consumer Protection Act and payday lender regulations
• The Financial Consumer Agency of Canada has general information about Payday Loans
• A financial advisor or credit counsellor. The Financial Consumer Agency of Canada has information about how credit counsellors can help, and about how to find a reputable credit counselling service:  www.fcac-acfc.gc.ca

Information the seller must give you

A seller means a person whose business involves selling goods or services online.  

Before an internet sales contract is entered into, a seller must give you a very clear opportunity to accept or decline the internet sales contract.  

A seller must also give you the following information:

• the seller’s contact information, including name, address, telephone number, and, if available, e-mail, and fax number;
• an accurate description of what you are buying;
• a price list, including taxes and shipping charges, and details of any extra charges;
• the total amount you have to pay, or, if you are buying the goods over time, the amount of each payment;
• how payments will be made, and in what currency; 
• the delivery date for goods or start date for services; 
• details about how and where delivery will happen, who will deliver the goods, who will pay for delivery
• any cancellation, exchange and refund policies; and 
• any other contract restrictions, limitations or conditions.

A seller is considered to have given you this information if it is displayed in a clear and understandable way, and you can save or print the information.

The contract must have the information outlined above, as well as your name (or customer number/other identifier) and the date the contract was entered into.

Right to get a copy of the contract

Yes.  A seller must give you a copy of the internet sales contract within 15 days of entering into it.  A seller can give you a copy by e-mail, fax, regular mail, or in some other way so that it is clear you got a copy. 

If you do not get a copy of the contract you can cancel the contract within 30 days of entering into it.

Can I cancel an internet sales contract without penalty?

Yes, in certain circumstances:

1.    If the seller did not give you the information they are required to provide (outlined above) , or did not give you a chance to accept or decline the contract before entering into it, you can cancel the contract at any time up to 7 days after you get a copy of the contract.

2.    If you do not get a copy of the contract you can cancel the contract within 30 days of entering into it.

3.    You can cancel the contract any time before delivery of the goods or start of services if the contract has a specific delivery or service start date, and

• the seller does not deliver the goods within 30 days of the delivery date in the contract or another date you and the supplier agreed to in writing or electronically; or
• the services are for travel, transportation or accommodation, and the seller does not start the services on the date in the contract or another date you and the supplier agreed to in writing or electronically.

4.  You can cancel the contract at any time before the delivery of the goods if there is no delivery or services start date in the contract, and the seller does not deliver the goods or start services within 30 days after the contract was entered into.

For an internet sales contract a seller is still considered to have delivered goods or started services if they try to deliver them:

• and you refuse to accept the goods or service; or
• no one is at your home to accept delivery or allow service start up, even though you were given reasonable notice.

How to cancel an internet sales contract

You can notify the seller in any way that makes it clear you are cancelling the contract.  For example, you can cancel the contract in person, by registered mail, telephone, courier, fax or e-mail.  It is a good idea to cancel the contract in writing, so that you have a record, and keep a copy to prove it.

What happens once an internet sales contract is cancelled

Cancelling an internet sales contract means it is as if the contract never existed, as long as you are cancelling for a good legal reason, like the reasons listed under 'Can I cancel an internet sales contract without penalty?'

Once a contract is cancelled:

• the seller has 15 days to refund any money you paid; and
• you must return any goods you got within 15 days of cancelling the contract, or within 15 days of delivery of the goods, whichever is later.  The goods must be unused and in the same condition they were in when you got them.

If the seller feels it is unfair for you to cancel the contract (for example, feels that you did not follow the terms of the contract) the seller can take you to court.

What can I do if I do not get my money back after cancelling

a)    Reversing a credit card charge

If you paid by credit card and your money is not refunded within 15 days of cancelling the contract, you can ask your credit card company to cancel or reverse the credit card charge.  Your request must be in writing, and must include the following information:

• your name, credit card number, and card expiry date;
• the seller’s name;
• the date the internet sales contract was entered into; 
• the amount that was charged to your credit card;
• a description of the goods or services; 
• the reason you cancelled the contract; and
• how and when you cancelled the contract.

Your credit card company may require you to sign a sworn document (affidavit) to prove your request.

Once you provide the required information your credit card company must cancel or reverse the credit card charge, including any interest, within 2 complete billing periods, or 90 days, whichever comes first.

b)    If you cancel the contract and don’t get your money back within 15 days, you can take the seller to court.  You may want to talk with a lawyer if you are thinking about going to court to try to get your money back.

Internet sales that are not covered

Nova Scotia’s Consumer Protection Act does not cover internet sales if:

• you download or access online goods or services immediately; or
• the goods or services cost less than $50.

More information

You can contact Service Nova Scotia at 902-424-5200 or 1 800 670-4357, or go to Service Nova Scotia online.  Service Nova Scotia administers the Consumer Protection Act, and deals with consumer complaints.

Finally, you’ll find tips for protecting your privacy and avoiding scams when shopping online at:

• Canadian Consumer Information Gateway - getcybersafe.gc.ca/
• Financial Consumer Agency of Canada - fcac-acfc.gc.ca
• Innovation, Science & Economic Development Canada – consumer information - ic.gc.ca