Franchise Act Regulations

c t FRANCHISES ACT REGULATIONS PLEASE NOTE This document, prepared by the Legislative Counsel Office, is an office consolidation of this regulation, current to January 01, 2007. It is intended for information and reference purposes only. This document is not the official version of these regulations. The regulations and the amendments printed in the Royal Gazette should be consulted on the Prince Edward Island Government web site to determine the authoritative text of these regulations. For more information concerning the history of these regulations, please see the Table of Regulations on the Prince Edward Island Government web site (www.princeedwardisland.ca). If you find any errors or omissions in this consolidation, please contact: Legislative Counsel Office Tel: (902) 368-4292 Email: legislation@gov.pe.ca Franchises Act Regulations Section 1 c FRANCHISES ACT Chapter F-14.1 REGULATIONS (Approved by His Honour the Lieutenant Governor in Council dated 25 April 2006.) Pursuant to section 14 of the Franchises Act R.S.P.E.I. 1988, Cap. F-14.1, Council made the following regulations: 1. Definitions (1) In these regulations (a) “Act” means the Franchises Act R.S.P.E.I. 1988, Cap. F-14.1; (b) “affiliate” has the same meaning as in the Canada Business Corporations Act (Canada); (c) “earnings projection” includes any information given by or on behalf of the franchisor or franchisor’s associate, directly or indirectly, from which a specific level or range of actual or potential sales, costs, income, revenue or profits from franchises or businesses of the franchisor, franchisor’s associates or affiliates of the franchisor of the same type as the franchise being offered can easily be ascertained. Interpretation (2) In these regulations, a franchise or business is the same type as an existing franchise or as the franchise being offered if it is operated or to be operated under the same trade-mark, trade name, logo or advertising or other commercial symbol as that franchise. (EC232/06) 2. Methods of delivery of disclosure document For the purposes of subsection 5(2) of the Act, the prescribed methods of delivery are (a) delivery by courier, if a written acknowledgment of receipt is received from the prospective franchisee; and (b) delivery by electronic means or in machine-readable media, if (i) the disclosure document (A) is delivered as a single, integrated, document or file, (B) has no extraneous content beyond what is required or permitted by law, but which may include customary devices for manipulating electronic documents in machine readable form and tools or access to tools that may be necessary or convenient to enable the recipient to receive and view the disclosure document, c t Updated January 01, 2007 Page 3 Section 3 Franchises Act Regulations (C) has no links to or from external documents or content, (D) is delivered in a form that intrinsically enables the recipient to store, retrieve, and print the disclosure document, and (E) conforms as to its content and format to the requirements of law, (ii) the franchisor keeps records of its electronic delivery of disclosure documents, and (iii) a written acknowledgment of receipt is received from the prospective franchisee. (EC232/06) 3. Contents of disclosure document (1) Every disclosure document shall contain (a) presented together at the beginning of the document, the risk warning statements set out in Part 1 of Schedule I; (b) the information pertaining to the franchisor described in Part 2 of Schedule I; (c) the information pertaining to the franchise described in Part 3 of Schedule I; and (d) the lists of current and former franchisees described in Part 4 of Schedule I. Document authorized under laws of other jurisdiction (2) A franchisor may use a document that is prepared and used to comply with the disclosure requirements under the franchise law of a jurisdiction outside Prince Edward Island as its disclosure document to be given to a franchisee, if the franchisor includes such supplementary information with that document as is necessary to comply with the disclosure requirements of the Act and these regulations. Substantially complete document (3) A disclosure document is properly given for the purposes of section 6 of the Act if the document is substantially complete. (EC232/06) 4. Certificate of Franchisor - disclosure document (1) A Certificate of Franchisor in Form 1 of Schedule II shall be completed and attached to every disclosure document provided by a franchisor to a prospective franchisee. Certificate of Franchisor - statement of material change (2) A Certificate of Franchisor in Form 2 of Schedule II shall be completed and attached to every statement of material change provided by a franchisor to a prospective franchisee. Certificate signed and dated (3) A Certificate of Franchisor, in either Form 1 or Form 2 of Schedule II, shall be signed and dated, (a) in the case of a franchisor that is not incorporated, by the franchisor; (b) in the case of a franchisor that is incorporated and has only one director or officer, by that person; or (c) in the case of a franchisor that is incorporated and has more than one officer or director, by at least two persons who are officers or directors. (EC232/06) Page 4 Updated January 01, 2007 t c Franchises Act Regulations Section 5 5. Financial statements (1) Subject to section 6 and to an exemption order made under subsection 8(1) of the Act, every disclosure document shall contain financial statements of the franchisor that are prepared in accordance with the generally accepted accounting principles of the jurisdiction in which the franchisor is based. Audits or reviews (2) The financial statements must be either (a) audited in accordance with the generally accepted auditing standards set out in the Canadian Institute of Chartered Accountants Handbook; or (b) reviewed in accordance with the review and reporting standards applicable to review engagements set out in the Canadian Institute of Chartered Accountants Handbook. Other jurisdictions auditing and review standards (3) The auditing standards and the review and reporting standards of other jurisdictions that are at least equivalent to those referred to in subsection (2) are acceptable. Fiscal year (4) The financial statements must be for the most recently completed fiscal year. Previous fiscal year (5) Despite subsection (4), if 180 days have not yet passed since the end of the most recently completed fiscal year and financial statements have not been prepared and reported on for that fiscal year, the disclosure document shall contain the financial statements for the last completed fiscal year. Balance sheet (6) Despite subsection (4), if a franchisor has operated for less than one fiscal year or if 180 days have not yet passed since the end of the first fiscal year of operations and financial statements for that year have not been prepared and reported on for that fiscal year, the disclosure document shall contain the opening balance sheet for the franchisor. (EC232/06) 6. Exemption from requirement to include financial statements A franchisor is exempt from the requirement in clause 5(4)(b) of the Act and section 5 of these regulations to include financial statements in a disclosure document if (a) the franchisor has a net worth on a consolidated basis according to its most recent financial statements, which have been audited or for which a review engagement report has been prepared, which (i) is at least $2,000,000, or (ii) is at least $1,000,000, if the franchisor is controlled by a corporation whose net worth on a consolidated basis according to its most recent financial statements that have been audited or for which a review engagement report has been prepared is at least $2,000,000; (b) the franchisor (i) has at least 25 franchisees engaging in business at all times in Canada in the five years immediately preceding the date of the disclosure document, (ii) has fewer than 25 franchisees engaging in business at all times in Canada and has at least 25 franchisees engaging in business at all times in a single c t Updated January 01, 2007 Page 5 Section 7 Franchises Act Regulations jurisdiction other than Canada in the five years immediately preceding the date of the disclosure document, (iii) does not meet the requirements of subclause (i) or (ii), but is controlled by a corporation that meets the requirements of subclause (i), or (iv) does not meet the requirements of subclause (i) or (ii), but is controlled by a corporation that meets the requirements of subclause (ii); (c) the franchisor (i) has engaged in the line of business associated with the franchise continuously for not less than five years immediately preceding the date of the disclosure document, or (ii) is controlled by a corporation that meets the requirements of subclause (i); and (d) the franchisor, the franchisor’s associates, and the directors, general partners and officers of the franchisor in the five years immediately preceding the date of the disclosure document, (i) in the case of a franchisor described in subclause (b)(i) or (iii) have not had any judgment, order or award made in Canada against any of them relating to fraud, unfair or deceptive practices, or a law regulating franchises including the Act, or (ii) in the case of a franchisor described in subclause (b)(ii) or (iv) have not had any judgment, order or award in Canada or in the jurisdiction referred to in subclause (b)(ii) made against any of them relating to fraud, unfair or deceptive practices, or a law regulating franchises including the Act. (EC232/06) 7. Amount of total annual investment For the purposes of clause 5(7)(g) of the Act, the prescribed amount is $5,000. (EC232/06) 8. Exemption application fee For the purposes of section 8 of the Act, the prescribed fee is $250. (EC232/06) Page 6 Updated January 01, 2007 t c Franchises Act Regulations SCHEDULE I SCHEDULE I DISCLOSURE DOCUMENT REQUIREMENTS PART 1 — RISK WARNINGS 1. Risk warnings A prospective franchisee should seek information on the franchisor and on the franchisor’s business background, banking affairs, credit history and trade references. 2. A prospective franchisee should seek expert independent legal and financial advice in relation to franchising and the franchise agreement prior to entering into the franchise agreement. 3. A prospective franchisee should contact current and previous franchisees prior to entering into the franchise agreement. 4. Lists of current and previous franchisees and their contact information can be found in this disclosure document. PART 2 — REQUIRED INFORMATION ABOUT THE FRANCHISOR 1. Business background of franchisor The business background of the franchisor, including (a) the name of the franchisor; (b) the name under which the franchisor is doing or intends to do business; (c) the franchisor’s principal business address and, if the franchisor has an attorney for service in Prince Edward Island, the name and address of that person; (d) the business form of the franchisor, whether corporate, partnership or otherwise; (e) if the franchisor is a subsidiary, the name and principal business address of the parent; (f) the business experience of the franchisor, including the length of time the franchisor has operated a business of the same type as the franchise being offered, has granted franchises of that type or has granted any other type of franchise; (g) if the franchisor has offered a different type of franchise from that being offered, a description of every such type of franchise, including for each type of franchise, (i) the length of time the franchisor has offered the franchise to prospective franchisees, and (ii) the number of franchises granted in the five years immediately before the date of the disclosure document. 2. Business background of directors, general partners and officers The business background of the directors, the general partners and the officers of the franchisor who will have day to day management responsibilities relating to the franchise, including (a) the name and current position of each person; (b) a brief description of the prior relevant business experience of each person; c t Updated January 01, 2007 Page 7 SCHEDULE I Franchises Act Regulations (c) the length of time each person has been engaged in business of the same type as the business of the franchise being offered; and (d) the principal occupation and the employers of each person during the five years immediately before the date of the disclosure document. 3. Previous convictions and pending charges A statement indicating whether, during the ten years immediately before the date of the disclosure document, the franchisor, the franchisor’s associate or a director, general partner or officer of the franchisor has been convicted of fraud, unfair or deceptive business practices or a violation of a law that regulates franchises, or if there is a charge pending against the person involving such a matter, and the details of any such conviction or charge. 4. Administrative orders and proceedings A statement indicating whether, during the ten years immediately before the date of the disclosure document, the franchisor, the franchisor’s associate or a director, general partner or officer of the franchisor has been subject to an administrative order or penalty under a law that regulates franchises or if the person is the subject of any pending administrative actions to be heard under such a law, and the details of any such order, penalty or pending action. 5. Civil actions and liabilities A statement indicating whether the franchisor, the franchisor’s associate or a director, general partner or officer of the franchisor has been found liable in a civil action of misrepresentation, unfair or deceptive business practices or violating a law that regulates franchises, during the ten years immediately before the date of the disclosure document, including a failure to provide proper disclosure to a franchisee, or if a civil action involving such allegations is pending against the person and the details of any such action or pending action. 6. Bankruptcy Details of any bankruptcy or insolvency proceedings, voluntary or otherwise, any part of which took place during the six years immediately before the date of the disclosure document, in which the debtor is (a) the franchisor or the franchisor’s associate; (b) a corporation whose directors or officers include a current director, officer or general partner of the franchisor, or included such a person at a time when the bankruptcy or insolvency proceeding was taking place; (c) a partnership whose general partners include a current director, officer or general partner of the franchisor, or included such a person at a time when the bankruptcy or insolvency proceeding was taking place; or (d) a director, officer or general partner of the franchisor in his or her personal capacity. PART 3 — REQUIRED INFORMATION ABOUT THE FRANCHISE 1. Costs of establishing the franchise A list of all of the franchisee’s costs associated with the establishment of the franchise, including Page 8 Updated January 01, 2007 t c Franchises Act Regulations SCHEDULE I (a) the amount of any deposits or initial franchise fees, or the formula for determining the amount, whether the deposits or fees are refundable and if so, under what conditions; (b) an estimate of the costs for inventory, supplies, leasehold improvements, fixtures, furnishings, equipment, signs, vehicles, leases, rentals, prepaid expenses and all other tangible or intangible property and an explanation of any assumptions underlying the estimate; and (c) any other costs associated with the establishment of the franchise not listed in (a) or (b), including any payment to the franchisor or franchisor’s associate, whether direct or indirect, required by the franchise agreement, the nature and amount of the payment and when the payment is due. 2. Other fees The nature and amount of any recurring or isolated fees or payments, other than those listed in item 1, that the franchisee must pay to the franchisor or franchisor’s associate, whether directly or indirectly, or that the franchisor or franchisor’s associate imposes or collects in whole or in part on behalf of a third party, whether directly or indirectly, except for payments required to be collected by law on behalf of a municipal, provincial or federal government or governmental agency. 3. Guarantees, security interests A description of the franchisor’s policies and practices, if any, regarding guarantees and security interests required of franchisees. 4. Estimate of operating costs If an estimate of annual operating costs for the franchise or of operating costs for the franchise for another regular period is provided directly or indirectly, a statement specifying, (a) the assumptions and bases underlying the estimate; (b) that the assumptions and bases underlying the estimate are reasonable; and (c) where information that substantiates the estimate is available for inspection. 5. Earnings projection If an earnings projection for the franchise is provided directly or indirectly, a statement specifying (a) the assumptions and bases underlying the projection, its preparation and presentation; (b) that the assumptions and bases underlying the projection, its preparation and presentation are reasonable; (c) the period covered by the projection; (d) whether the projection is based on actual results of existing franchises or of existing businesses of the franchisor, franchisor’s associates or affiliates of the franchisor of the same type as the franchise being offered and, if so, the locations, areas, territories or markets of such franchises and businesses; (e) if the projection is based on a business operated by the franchisor, franchisor’s associate or affiliate of the franchisor, that the information may differ in respect of a franchise operated by a franchisee; and (f) where information that substantiates the projection is available for inspection. c t Updated January 01, 2007 Page 9 SCHEDULE I Franchises Act Regulations 6. Financing The terms and conditions of any financing arrangements that the franchisor or franchisor’s associate offers, directly or indirectly, to the franchisee. 7. Training A description of any training or other assistance offered to the franchisee by the franchisor or franchisor’s associate, including where the training or other assistance will take place, whether the training or other assistance is mandatory or optional and, if it is mandatory, a statement specifying who bears the costs of the training or other assistance. 8. Advertising If the franchisee is required to contribute to an advertising, marketing, promotion or similar fund, a description of the fund, and the amount or the basis of calculating the amount of the franchisee’s required contribution. 9. Purchase and sale restrictions A description of any restrictions or requirements imposed by the franchise agreement with respect to (a) obligations to purchase or lease from the franchisor or franchisor’s associate or from suppliers approved by the franchisor or franchisor’s associate; (b) the goods and services the franchisee may sell; and (c) to whom or by what means the franchisee may sell goods or services. 10. Rebates, commissions, payments or other benefits A description of the franchisor’s policies and practices, if any, regarding rebates, commissions, payment or other benefits, including (a) the receipt, if any, by the franchisor or franchisor’s associate of a rebate, commission, payment or other benefit as a result of purchases of goods and services by franchisees; and (b) whether rebates, commissions, payments or other benefits are shared with franchisees either directly or indirectly. 11. Territory A description of the franchisor’s policies and practices, if any, regarding the granting of exclusive territory and, if the franchise agreement grants the franchisee rights to exclusive territory, a description of the franchisor’s policy, if any, as to whether the continuation of the franchisee’s rights to exclusive territory depends on the franchisee achieving a specific level of sales, market penetration, or other condition, and under what circumstances these rights might be altered. 12. Proximity A description of the franchisor’s policies and practices, if any, on the proximity between an existing franchise and (a) another franchise of the franchisor or franchisor’s associate of the same type as the existing franchise; Page 10 Updated January 01, 2007 t c Franchises Act Regulations SCHEDULE I (b) any distributor or licensee using the franchisor’s trade-mark, trade name, logo or advertising or other commercial symbol; (c) a business operated by the franchisor, franchisor’s associate or affiliate of the franchisor that distributes similar goods or services to those distributed by the existing franchise under a different trade-mark, trade name, logo or advertising or other commercial symbol; or (d) a franchise of the franchisor, franchisor’s associate or affiliate of the franchisor that distributes similar goods or services to those distributed by the existing franchise under a different trade-mark, trade name, logo or advertising or other commercial symbol. 13. Trade-marks and other proprietary rights A description of the rights the franchisor or the franchisor’s associate has to the trade-mark, trade name, logo or advertising or other commercial symbol associated with the franchise. 14. Personal participation A description of the extent to which the franchisee is required to participate personally and directly in the operation of the franchise or, if the franchisee is a corporation, partnership or other entity, the extent to which the principals of the corporation, partnership or other entity are so required. 15. Termination, renewal and transfer of the franchise A concise summary of all the provisions in the franchise agreement that deal with the termination of the agreement, the renewal of the agreement and the transfer of the franchise and a list of where these provisions are found in the agreement. 16. Dispute resolution A description of any restrictions or requirements imposed by the franchise agreement with respect to arbitration, mediation or other alternative dispute resolution process, including any requirements relating to the location or venue of such a process. PART 4 — LISTS OF FRANCHISEES 1. List of current franchisees (1) A list of all franchisees of the franchisor, franchisor’s associates, or affiliates of the franchisor, that currently operate franchises of the same type as the franchise being offered in Prince Edward Island, New Brunswick and Nova Scotia, including the name, business address and telephone number of the franchisee and the business address and telephone number of the franchise. (2) If there are fewer than 20 franchisees in Prince Edward Island, New Brunswick and Nova Scotia, the list shall also include information on franchisees that operate franchises that are geographically closest to Prince Edward Island until information on 20 or all franchisees is provided. c t Updated January 01, 2007 Page 11 SCHEDULE I Franchises Act Regulations 2. List of former franchisees A list of all franchisees of the franchisor, franchisor’s associates or affiliates of the franchisor that operated a franchise in Prince Edward Island, New Brunswick or Nova Scotia of the same type as the franchise being offered that has been terminated, cancelled, not renewed or reacquired by the franchisor or otherwise left the system within the last fiscal year immediately preceding the date of the disclosure document, including the name, last known address and telephone number of each franchisee. (EC232/06) Page 12 Updated January 01, 2007 t c Franchises Act Regulations SCHEDULE II SCHEDULE II FORM 1 CERTIFICATE OF FRANCHISOR This Disclosure Document (a) contains no untrue information, representation or statement, whether of a material fact or otherwise; (b) contains every material fact, financial statement, statement and other information that is required to be contained by the Act and the regulations made under it; (c) does not omit a material fact that is required to be contained by the Act and the regulations made under it; and (d) does not omit a material fact that needs to be contained in order for this Disclosure Document not to be misleading. A Certificate of Franchisor shall be signed and dated as required by section 4 of the Franchises Act Regulations. FORM 2 CERTIFICATE OF FRANCHISOR This Statement of Material Change, (a) contains no untrue information, representation or statement, whether of a material change or otherwise; (b) contains every material change that is required to be contained by the Act and the regulations made under it; (c) does not omit a material change that is required to be contained by the Act and the regulations made under it; and (d) does not omit a material change that needs to be contained in order for this Statement of Material Change not to be misleading. A Certificate of Franchisor shall be signed and dated as required by section 4 of the Franchises Act Regulations. (EC232/06) c t Updated January 01, 2007 Page 13