Difference between revisions of "Miscellaneous Consumer Protection Legal Information (11:VIII)"

Revision as of 04:25, 9 August 2021

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on August 8, 2021.

A. Circumvention of Disclaimer Clauses

Vendors may try to protect themselves from liability arising from oral representations made to a buyer by inserting an exclusion clause into the written contract. Exclusion clauses attempt to invalidate any representations or warranties other than those explicitly mentioned in the written contract. Exclusion clauses can also seek to exclude statutory conditions and warranties, or they can attempt to limit the buyer’s default rights. There can be a variety of ways to get around such clauses.

1. Statutory Relief

a) Retail Sales of Goods

Under s 20(2) of the SGA, in the case of a retail sale of new goods to a consumer, any term of a contract that purports to negate or in any way diminish the statutory conditions or warranties in ss 17 – 19 of the SGA is void.

b) Deceptive Act or Practice

Where a supplier makes oral representations to a consumer, but terms in the contract deny or negate such representations, the vendor may have engaged in a deceptive act or practice under the BPCPA.

c) Consumer Transactions Generally

In consumer transactions involving a commercial supplier, the purchaser may invoke s 187 of the BPCPA, which makes oral or extrinsic evidence admissible for determining the understanding of the parties.

2. Common Law Relief

Although the statutory provisions will usually help a consumer defeat disclaimer clauses, several common law doctrines and judicial techniques may also be of assistance.

a) Clause Deemed Not to Be Part of Contract

To rely on an exclusion clause, the seller must show that it is part of the contract. However, the court may find that the clause does not form part of the contract where, for example, it is insufficiently legible, or where it was inserted after the agreement was concluded. In Thornton v Shoe Lane Parking Ltd., [1971] 2 QB 163, the exclusion clause was written on signs inside the parking lot and was found to not have been incorporated into the contract, as the contract was concluded when the parking ticket was given by the machine at the entrance to the parking lot.

b) Misrepresentation as to the Clause’s Legal Effect

When the seller misrepresents the legal effect of a disclaimer clause, a court may be willing to render the clause inoperative. Traditionally, however, courts would not invalidate a clause based on a misrepresentation of law, as opposed to fact.

c) Strict Interpretation of Clause

Disclaimer clauses are strictly construed against the party seeking to rely on them. Anything not explicitly found in the clause will not be read into it.

d) Collateral Contract

The court may find that where a clause excludes oral representations, an oral representation made by the seller actually constitutes a collateral (or parallel) contract. However, for a court to find there is a collateral contract, the collateral contract must also have all the elements of an enforceable contract (e.g. offer, acceptance, consideration, etc.)

e) Inadequate Notice

Some disclaimer clauses are hidden in the “boilerplate” fine print of the contract and have been held not binding for this reason, if they are particularly onerous and attention was not drawn to them (Tilden Rent-A-Car Co v Clendenning (1978), 18 OR (2d) 601, 83 DLR (3d) 400 (Ont CA)).

B. Consumers’ Rights against Creditors and Debt Collection Agencies

1. If the Client has Serious Debt, Inform the Client of:

a) The limits of a creditor’s remedies (Court Order Enforcement Act, RSBC 1996, c 78), including garnishment and seizure;
b) The limits to debt recovery (exemptions) under the Court Order Enforcement Act; and
c) Options for getting out of debt (see Chapter 10: Creditors’ and Debtors’ Remedies for Orderly Payment of Debts information).

2. Legislation Regulating Debt Collection

Business Practices and Consumer Protection Act, SBC 2004
Court Order Enforcement Act, RSBC 1996, c 78
Repairer’s Lien Act, RSBC 1996, c 404
Small Claims Act, RSBC 1996, c 430
Bankruptcy and Insolvency Act (Canada), RSC 1985, c B-3
Debtor Assistance Act, RSBC 1996, c 93
Creditor Assistance Act, RSBC 1996, c 83
Personal Property Security Act, RSBC 1996, c 359

For more information on debtor and creditor law, see Chapter 10: Debtors’ and Creditors’ Remedies.

C. Telemarketer Licensing Regulation

In the Telemarketer Licensing Regulation, BC Reg 83/2005 [TLR], “telemarketer” is defined as “a supplier who engages in the business or occupation of initiating contact with a consumer by telephone or facsimile for the purpose of conducting a consumer transaction.”

Under the TLR, s 4(1) requires that telemarketers have a license for each location from which they conduct business.

A telemarketer must keep various records for each sales contract entered into and the records be maintained for a period of two years after the contract is entered into by the consumer (s 7).

Under s 8 of the TLR, several acts and practices by telemarketers are prohibited. Under s 8(2), it is prohibited to contact a consumer by either phone or fax on:

Statutory holidays;
Outside of the hours of 10 a.m. – 6 p.m. on Saturdays or Sundays; and
Outside of the hours of 9 a.m. – 9:30 p.m. on any other day.

A telemarketer is prohibited from contacting a consumer more than once in 30 days for the same transaction (s 8(3)) and blocking their number on the call display of the consumer (s 8(4)). Furthermore, before the consumer enters into a contract or commits to contributing money, a telemarketer acting on behalf of a supplier must disclose (s 8(5)):

The name, business address and telephone number of the supplier, or
The purpose of the contribution if requesting a donation.

D. Repairer’s Liens

The Repairer’s Lien Act, RSBC 1996, c 404 [RLA], which codifies the common-law possessory lien, offers an extremely powerful collection tool for those who repair or do other work on chattels. With respect to any chattel, it allows the repairer to simply retain possession of the goods until paid and, if payment is not forthcoming, to sell the goods to recover the cost of the repair. In addition, for a limited category of chattels, the most important of which is motor vehicles, the RLA, if followed precisely, allows the repairer to maintain and enforce a lien on a vehicle, even after it has been returned to the owner. This is a common consumer problem encountered by individuals whose vehicles have been seized by a bailiff following a dispute over the amount of a repair bill. The most important requirement for a valid repairer’s lien is that the repairer, after doing the work but before releasing possession of the vehicle, must get the owner to sign an acknowledgement of indebtedness (often included as part of the repair invoice). The repairer then has 21 days to file a lien in the Personal Property Registry and, if everything has been done properly, the lien remains valid for a period of six months and can be renewed for an additional six months. At any time while the lien is subsisting, the garage keeper or repairer can have the vehicle seized by a bailiff.

Another common consumer complaint with respect to repairer’s lien seizures is the amount of the bailiff’s fee. Bailiffs frequently try to demand excessive seizure fees. A schedule to the RLA limits certain bailiff fees. See Fees Regulation, BC Reg 424/81. Complaints about excessive fees charged by bailiffs can be referred to the Director of Debt Collection, Ministry of Attorney General.

E. Liens for Storage

The Warehouse Lien Act, RSBC 1996, c 480 gives a statutory lien and power of sale to those who are in the business of storing goods.

F. Towed Vehicles

Under s 188(4) of the Motor Vehicle Act, RSBC 1996, c 318, where an illegally parked vehicle has been towed away, the owner of the vehicle must pay all costs and charges for the removal, care, and storage of the motor vehicle. These costs and charges represent a lien in favour of the keeper of the place where the vehicle is being kept.

G. Electronic Transactions Act

The Electronic Transaction Act, SBC 2001, c 10 [ETA] prevents parties from challenging contracts solely on the grounds that they are entered into electronically. The ETA removes legal uncertainty concerning the enforceability of contracts entered into electronically and is primarily designed to facilitate commercial relations using the Internet. However, s 17 of the Act provides an element of consumer protection. It provides that an electronic record created by an individual is not enforceable where the individual made a material error in the record and:

The electronic agent did not provide an opportunity to prevent or correct the error;
The individual notifies the other party that an error has been made as soon as practicable after learning of the error;
The person making the error takes reasonable steps to return the consideration in accordance with the instructions of the other party or destroy the consideration if requested to do so; and
The individual has not used or received any material benefit or value from the consideration.

H. Civil Resolution Tribunal

British Columbia's new Civil Resolution Tribunal Act, SBC 2012, c 25, establishes a new dispute resolution body, the Civil Resolution Tribunal. The Tribunal provides a new online venue for the resolution of small claims matters. It encourages people to use a broad range of collaborative dispute resolution tools to resolve their disputes as early as possible, while still preserving adjudication as a last resort.

The Civil Resolution Tribunal is able to resolve (and has initial exclusive jurisdiction of):

Small claims disputes up to a maximum value of $5,000 for

debt or damages;
recovery of personal property;
specific performance of an agreement relating to personal property or services; or
relief from opposing claims to personal property

Claims related to motor vehicle accidents up to $50,000 (Civil Resolution Tribunal Act s 133), such as:

damages for injuries suffered due to a motor vehicle accident
determination whether an injury is a minor injury for the purposes of the Insurance Act
damage to property (such as a vehicle) incurred due to a motor vehicle accident

Strata disputes between owners of strata properties and strata corporations for a wide variety of matters such as

non-payment of monthly strata fees or fines;
unfair actions by the strata corporation or by people owning more than half of the strata lots in a complex;
uneven, arbitrary or non-enforcement of strata bylaws (such as noise, pets, parking, rentals);
issues of financial responsibility for repairs and the choice of bids for services;
irregularities in the conduct of meetings, voting, minutes or other matters;
interpretation of the legislation, regulations or bylaws; and
issues regarding the common property.

For more information on the Civil Resolution Tribunal and the Small Claims Court, see Chapter 20: Small Claims.

I. Air Passenger Protection Regulations

Passengers on aircraft recently received an additional set of legal protections in the cases of delayed flights, denied boarding, children under 14 travelling with or without family, and musical instrument transportation. The Air Passenger Protection Regulations SOR/2019-150 [APPR] under the Canada Transportation Act went into effect with some protections entering into force on July 15th, 2019 and fully entering force on December 15th, 2019. There are also differences in the requirements for a large carrier (defined as carrying over 2 million people worldwide per year for the past 2 years) and a small carrier. The information below applies to large carriers, and small carriers have similar but slightly different obligations. Please see the regulation itself for more information.

1. Communication with Passengers

Air carriers must make its terms and conditions surrounding:

Flight delay, flight cancellation and denial of boarding;
Lost or damaged baggage; and
The assignment of seats to children who are under the age of 14 years

Available in simple, clear and concise language (APPR s 5(1)). Additionally, they need to provide this information (or a hyperlink to this information) on all digital platforms that they use to sell tickets and on all documents on which the passenger’s itinerary appears (APPR s 5(2)). In the airport, the carrier is required to display signage indicating that passengers have certain rights under the APPR in the case of lost/damaged baggage or denied boarding. There are additional requirements on the carriers and sellers of tickets for air travel in terms of advertisement (APPR s 25-31). Please see the regulation for more information.

2. Delays, Cancellations, and Denial of Boarding

a) General

Section 13 of the APPR sets out the information that must be provided to passengers in the event of a delay, cancellation, or denial of boarding:

the reason for the delay, cancellation or denial of boarding;
the compensation to which the passenger may be entitled for the inconvenience;
the standard of treatment for passengers, if any; and
the recourse available against the carrier, including their recourse to the Agency.

In the case of a delay, the carrier is also required to give status updates every 30 minutes until a new departure time is set or alternative travel arrangements have been made. There are three possible categorizations for a delay, cancellation, or denial of boarding: it is not within the control of a carrier, it is in control of the carrier, or it is in the control of the carrier but is required for safety purposes. Determining the category of the incident is the first step for determining the benefits that are required to be afforded to the passenger. The carrier is not at fault in situations such as weather conditions that render safe operation impossible, instructions from air traffic control, a medical emergency, a labour disruption within the carrier, illegal acts or sabotage, a collision with wildlife, or a security threat. It also includes a delay, cancellation or denial of boarding that is directly attributable to an earlier delay or cancellation caused by something outside of the control of the carrier where the carrier took all reasonable measures to mitigate the impact of the earlier delay or cancellation. These are merely examples and other situations could potentially be classified as not within the control of the carrier (APPR s 10). This table below sets out the benefits that must be provided to passengers in the event of a delay, cancellation, or denial of boarding (APPR ss 10-21):

The Carrier Must:	Carrier not at fault	Carrier at fault, but needed for safety	Carrier at fault
Inform the passenger as set out in s 13 and detailed above	Yes	Yes	Yes
Provide food, drink, and access to communication free of charge in case of delay or cancellation	No	Starting 2 hours after original departure time, if passenger informed of delay/cancellation less than 12 hours before departure time	Starting 2 hours after original departure time, if passenger informed of delay/cancellation less than 12 hours before departure time
In the event of a cancellation, denial of boarding, or a delay of more than 3 hours where the passenger desires, provide alternate travel arrangements free of charge or a refund	A confirmed reservation for the next available flight with the carrier that is travelling to the destination within 48 hours; Or if that cannot occur, a confirmed reservation for a flight to the destination by any other carrier and if that flight departs from another airport, transportation to that airport; No refund need be offered	Provide a refund; or a confirmed reservation for the next available flight with the carrier that is travelling to the destination within 9 hours; If that cannot occur, a confirmed reservation for a flight to the destination by any other carrier from the original airport within the next 48 hours; Or, if that also cannot occur, a confirmed reservation for a flight to the destination by any other carrier and if that flight departs from another airport, transportation to that airport.	Provide a refund (minimum $400); or a confirmed reservation for the next available flight with the carrier that is travelling to the destination within 9 hours; If that cannot occur, a confirmed reservation for a flight to the destination by any other carrier from the original airport within the next 48 hours; Or, if that also cannot occur, a confirmed reservation for a flight to the destination by any other carrier and if that flight departs from another airport, transportation to that airport.
Provide compensation for a delay or cancellation with less than 14 days of notice	No	No	Compensation depends on how long it delays arrival to destination: $400 if between 3 and 6 hours of delay $700 if between 6 and 9 hours of delay $1,000 if more than 9 hours of delay
Standard of Treatment for denial of boarding	No standard of treatment required by the regulations	before a passenger boards the flight reserved as part of an alternate travel arrangement, provide them with the following treatment free of charge: food and drink in reasonable quantities, taking into account the length of the wait, the time of day and the location of the passenger; and access to a means of communication. If a benefit is offered in exchange for a passenger giving up their seat, the carrier must provide the passenger a written confirmation before the flight departs	before a passenger boards the flight reserved as part of an alternate travel arrangement, provide them with the following treatment free of charge: food and drink in reasonable quantities, taking into account the length of the wait, the time of day and the location of the passenger; and access to a means of communication. If a benefit is offered in exchange for a passenger giving up their seat, the carrier must provide the passenger a written confirmation before the flight departs
Provide compensation for a denial of boarding	No	No	Compensation depends on how long it delays arrival to destination: $900 if between 3 and 6 hours of delay $1,800 if between 6 and 9 hours of delay $2,400 if more than 9 hours of delay

In the case of compensation for delay, cancellation, or a refund, compensation needs to be applied for to the carrier before the first anniversary of the day on which the flight delay or flight cancellation occurred.

Compensation must be monetary unless (APPR s 21):

[the carrier] offers compensation in another form that has a greater monetary value than the minimum monetary value of the compensation that is required under these Regulations;
the passenger has been informed in writing of the monetary value of the other form of compensation;
the other form of compensation does not expire; and
the passenger confirms in writing that they have been informed of their right to receive monetary compensation and have chosen the other form of compensation.

In the case where a passenger’s class of ticket changes on an alternate travel arrangement made by the carrier because of a delay, cancellation, or denial of boarding, the carrier may not charge an additional fee if alternate travel arrangements are of a higher class and, if the carrier was at fault for the delay cancellation or denial of boarding, must compensate the passenger the difference in the ticket cost if the alternate travel arrangement is of a lower class. To the extent possible, the carrier must provide services that are comparable to those of the original ticket.

b) Denial of Boarding, Priority Rules

When a passenger is denied boarding in a case where the carrier is at fault (even if it is done for safety reasons), there is a procedure in place for determining who is to be denied boarding (APPR s 15):

The air carrier must ask all passengers if they would be willing to give up their seat, and cannot deny boarding to a passenger until it has done so
The carrier must not deny boarding to a passenger that is already on the aircraft, unless it is required for safety reasons
If any passenger(s) must be denied boarding, the carrier must start by denying boarding to passengers that fall into the lowest category on this list that contains passengers who are still entitled to board the plane (in other words, this is the priority list for boarding):
1. an unaccompanied minor;
2. a person with a disability and their support person, service animal, or emotional support animal, if any;
3. a passenger who is travelling with family members; and
4. a passenger who was previously denied boarding on the same ticket.
5. all other passengers

c) Delay on the Tarmac

There are additional protections in place if a delay occurs while waiting on the ground in the aircraft either before take-off or after landing. Once there is a delay, the air carrier is required to provide access to the following, free of charge [APPR s 8(1)]:

if the aircraft is equipped with lavatories, access to those lavatories in working order;
proper ventilation and cooling or heating of the aircraft;
if it is feasible to communicate with people outside of the aircraft, the means to do so; and
food and drink, in reasonable quantities, taking into account the length of the delay, the time of day and the location of the airport.
If urgent medical assistance is required, the carrier must facilitate access to that assistance

In addition, after 3 hours of delay on the ground the carrier must provide an opportunity for the passengers to disembark provided that it is not likely for take-off to occur in less than 45 minutes (APPR s 9).

3. Lost or Damaged Baggage

In the case where baggage is lost (even temporarily) or damaged, the carrier must provide compensation of up to $2,100 (see the regulation) and a refund of any baggage fees (APPR s 23).

4. Priority Seating for Children under 14

By December 15th, 2019, The carrier must facilitate the assignment of a seat to a child who is under the age of 14 years by offering, at no additional charge,

in the case of a child who is four years of age or younger, a seat that is adjacent to their parent, guardian or tutor’s seat;
in the case of a child who is 5 to 11 years of age, a seat that is in the same row as their parent, guardian or tutor’s seat, and that is separated from that parent, guardian or tutor’s seat by no more than one seat; and
in the case of a child who is 12 or 13 years of age, a seat that is in a row that is separated from the row of their parent, guardian or tutor’s seat by no more than one row (APPR s 22).

The carrier must compensate the passenger for the difference in ticket cost if the seat assigned to the child is of a lower class, and may ask for additional payment equal to the difference in ticket price if the passenger chooses a seat that is higher class than the ticket.

5. Musical Instruments

All carriers must have policies in place for the transportation of musical instruments, including restrictions with respect to size, weight, quantity, and use of stowage space in the cabin; fees for transporting instruments; and the options available for a passenger if the airplane that the flight actually takes place on is different than expected and has insufficient storage space in the cabin.

Carriers must accept musical instruments as checked or carry-on baggage unless the specific instrument is too heavy, too large, or too unsafe according to the general terms and conditions of the carrier.

J. Cheque Cashing Fees for Government-Issued Cheques

The BCPCA sets out a restriction on the amount allowed to be charged to a person in fees for cashing a government-issued cheque, such as a cheque issued under the Employment and Assistance Act for income assistance (BPCPA s 112.13). Specifically, under the Government Cheque Cashing Fees Regulation BC Reg 127/2018 [GCCFR], a person may not charge a cheque cashing fee of more than $2 plus 1% of the value of the cheque up to a maximum of $10 total (GCCFR s 3).

K. Consumers and Services Handling Human Remains

The BPCPA makes exceptions for contracts that can be considered funeral contracts, interment right contracts, and preneed cemetery or funeral services contracts (as defined in s 17). Part 4, Division 3 of this Act (ss 29 – 45) outlines contractual requirements and consumer protections for interactions between consumers and suppliers involved in the provision of these types of services.

Furthermore, the Cremation, Interment and Funeral Services Act, SBC 2004, c35 [CIFSA] governs much of the activity surrounding the handling of human remains, including the disposition, exhumation, removal, transportation, and storage of these remains. This legislation also dictates contractual requirements for contractual interactions between consumers and services including crematoria, funeral providers, and cemeteries, as well as containing stipulations for other types of interactions between consumers and these services.