BILL 2 – 2004
BUSINESS PRACTICES AND CONSUMER PROTECTION ACT

 
Part 2 -- Unfair Practices

 
Division 1 -- Deceptive Acts or Practices

Deceptive acts or practices

4 (1) In this Division:

"deceptive act or practice" means, in relation to a consumer transaction,

(a) an oral, written, visual, descriptive or other representation by a supplier, or

(b) any conduct by a supplier

that has the capability, tendency or effect of deceiving or misleading a consumer or guarantor;

"representation" includes any term or form of a contract, notice or other document used or relied on by a supplier in connection with a consumer transaction.

(2) A deceptive act or practice by a supplier may occur before, during or after the consumer transaction.

(3) Without limiting subsection (1), one or more of the following constitutes a deceptive act or practice:

(a) a representation by a supplier that goods or services

(i) have sponsorship, approval, performance characteristics, accessories, ingredients, quantities, components, uses or benefits that they do not have,

(ii) are of a particular standard, quality, grade, style or model if they are not,

(iii) have a particular prior history or usage that they do not have, including a representation that they are new if they are not,

(iv) are available for a reason that differs from the fact,

(v) are available if they are not available as represented,

(vi) were available in accordance with a previous representation if they were not,

(vii) are available in quantities greater than is the fact, or

(viii) will be supplied within a stated period if the supplier knows or ought to know that they will not;

(b) a representation by a supplier

(i) that the supplier has a sponsorship, approval, status, affiliation or connection that the supplier does not have,

(ii) that a service, part, replacement or repair is needed if it is not,

(iii) that the purpose or intent of a solicitation of, or a communication with, a consumer by a supplier is for a purpose or intent that differs from the fact,

(iv) that a consumer transaction involves or does not involve rights, remedies or obligations that differs from the fact,

(v) about the authority of a representative, employee or agent to negotiate the final terms of a consumer transaction if the representation differs from the fact,

(vi) that uses exaggeration, innuendo or ambiguity about a material fact or that fails to state a material fact, if the effect is misleading,

(vii) that a consumer will obtain a benefit for helping the supplier to find other potential customers if it is unlikely that the consumer will obtain the benefit,

(viii) that appears in an objective form such as an editorial, documentary or scientific report if the representation is primarily made to sell goods or services, unless the representation states that it is an advertisement or promotion, or

(ix) to arrange for the consumer an extension of credit for a fee, unless the fee is deducted from the advance, as defined in section 57 [definitions];

(c) a representation by a supplier about the total price of goods or services if

(i) a person could reasonably conclude that a price benefit or advantage exists but it does not,

(ii) the price of a unit or instalment is given in the representation, and the total price of the goods or services is not given at least the same prominence, or

(iii) the supplier's estimate of the price is materially less than the price subsequently determined or demanded by the supplier unless the consumer has expressly consented to the higher price before the goods or services are supplied;

(d) a prescribed act or practice.

Prohibition and burden of proof

5 (1) A supplier must not commit or engage in a deceptive act or practice in respect of a consumer transaction.

(2) If it is alleged that a supplier committed or engaged in a deceptive act or practice, the burden of proof that the deceptive act or practice was not committed or engaged in is on the supplier.

Advertising

6 (1) In this section, "advertiser" means a supplier who publishes advertisements.

(2) An advertiser who, on behalf of another supplier, publishes a deceptive or misleading advertisement is not liable under section 171 [damages recoverable], 172 [court actions respecting consumer transactions] or 189 [offences] if the advertiser proves that the advertiser did not know and had no reason to suspect that its publication would contravene section 5.

(3) An advertiser, for each advertisement accepted, must maintain a record of the name and address of the supplier who provides the advertisement.

 
Division 2 -- Unconscionable Acts or Practices

Application of this Division

7 Nothing in this Division limits, restricts or derogates from a court's power or jurisdiction.

Unconscionable acts or practices

8 (1) An unconscionable act or practice by a supplier may occur before, during or after the consumer transaction.

(2) In determining whether an act or practice is unconscionable, a court must consider all of the surrounding circumstances of which the supplier knew or ought to have known.

(3) Without limiting subsection (2), the circumstances that the court must consider include the following:

(a) that the supplier subjected the consumer or guarantor to undue pressure to enter into the consumer transaction;

(b) that the supplier took advantage of the consumer or guarantor's inability or incapacity to reasonably protect his or her own interest because of the consumer or guarantor's physical or mental infirmity, ignorance, illiteracy, age or inability to understand the character, nature or language of the consumer transaction, or any other matter related to the transaction;

(c) that, at the time the consumer transaction was entered into, the total price grossly exceeded the total price at which similar subjects of similar consumer transactions were readily obtainable by similar consumers;

(d) that, at the time the consumer transaction was entered into, there was no reasonable probability of full payment of the total price by the consumer;

(e) that the terms or conditions on, or subject to, which the consumer entered into the consumer transaction were so harsh or adverse to the consumer as to be inequitable;

(f) a prescribed circumstance.

Prohibition and burden of proof

9 (1) A supplier must not commit or engage in an unconscionable act or practice in respect of a consumer transaction.

(2) If it is alleged that a supplier committed or engaged in an unconscionable act or practice, the burden of proof that the unconscionable act or practice was not committed or engaged in is on the supplier.

Remedy for an unconscionable act or practice

10 (1) Subject to subsection (2), if an unconscionable act or practice occurred in respect of a consumer transaction, that consumer transaction is not binding on the consumer or guarantor.

(2) If a court determines that an unconscionable act or practice occurred in respect of a consumer transaction that is a mortgage loan, as defined in section 57 [definitions], the court may do one or more of the following:

(a) reopen the transaction and take an account between the supplier and the consumer or guarantor;

(b) despite any statement or settlement of account or any agreement purporting to close previous dealings and create a new obligation, reopen any account already taken and relieve the consumer from any obligation to pay the total cost of credit at a rate in excess of the prevailing prime rate;

(c) order the supplier to repay any excess that has been paid or allowed by the consumer or guarantor;

(d) set aside all or part of, or alter, any agreement made or security given in respect of the transaction and, if the supplier has parted with the security, order the supplier, to indemnify the consumer;

(e) suspend the rights and obligations of the parties to the transaction.

 
Division 3 -- Unsolicited Goods or Services

Definition and interpretation

11 (1) In this Division, "unsolicited goods or services" means goods or services that are supplied to a consumer who did not request them, other than

(a) goods or services supplied to a consumer who knew or ought to have known they were intended for delivery to another person,

(b) goods or services for which the supplier does not require payment, or

(c) a prescribed supply of goods or services.

(2) For the purposes of the definition of "unsolicited goods or services", a request for goods or services must not be inferred only from the passage of time or from the consumer's

(a) payment for the goods or services,

(b) use of the goods or services,

(c) request to purchase another similar good or service, or

(d) inaction.

Unsolicited goods or services

12 (1) A consumer has no legal obligation in respect of unsolicited goods or services unless and until the consumer expressly acknowledges to the supplier in writing his or her intention to accept the goods or services.

(2) Unless the consumer has given the acknowledgment referred to in subsection (1), the supplier does not have a cause of action for any loss, use, misuse, possession, damage or misappropriation in respect of the goods or services or the value obtained by the use of the goods or services.

(3) Subsections (1) and (2) do not apply to goods supplied to a consumer on a continuing basis under a contract between the consumer and supplier.

(4) If it is alleged that the supplier supplied unsolicited goods or services, the burden of proof that the goods or services were not unsolicited is on the supplier.

Material change resulting in unsolicited goods or services

13 (1) This section does not apply to

(a) a material change in services referred to in section 25 (4) [continuing services contract -- cancellation], and

(b) a change to the price of goods or services or a renewal of an existing supply of goods or services if the goods or services are not otherwise changed.

(2) If a consumer is being supplied with goods or services on a continuing basis and there is a material change in the goods or services, or in the supply of the goods or services, the goods or services are deemed to be unsolicited goods or services from the time of the material change unless the supplier is able to establish that the consumer consented to the material change.

(3) Subject to subsection (4), a supplier may rely on a consumer's consent to the material change if that consent is made by any method that permits the supplier to produce evidence to establish the consumer's consent.

(4) A supplier does not establish a consumer's consent by providing notice to the consumer to the effect that the supplier will supply the materially changed goods or services to the consumer unless the consumer instructs the supplier not to supply the goods or services.

Consumer's remedy if unsolicited goods or services

14 (1) A consumer who pays for unsolicited goods or services may give to the supplier a demand, in writing, for a refund from the supplier within 2 years after the consumer first received the goods or services if the consumer did not expressly acknowledge to the supplier in writing his or her intention to accept the goods or services.

(2) A demand is sufficient if it indicates, in any way, the intention of the consumer to demand a refund of a payment made for unsolicited goods or services.

(3) If a supplier receives a demand for a refund, the supplier must refund to the consumer, within 15 days after the supplier received the demand, all money received in respect of the unsolicited goods or services.