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Difference between revisions of "Consumer Protection from Deceptive and Unconscionable Acts (11:IV)"
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Consumer Protection from Deceptive and Unconscionable Acts (11:IV) (view source)
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The Director need only show that a deceptive practice would tend to cause consumers to make an error in judgment, but does not need to show that any consumer made an error in judgment, to enforce the Act against a supplier. | The Director need only show that a deceptive practice would tend to cause consumers to make an error in judgment, but does not need to show that any consumer made an error in judgment, to enforce the Act against a supplier. | ||
The ''BPCPA'', similarly to the ''Trade Practices Act'', should be interpreted as imposing “a high standard of candour, especially on suppliers who choose to commend their wares” (''Rushak v | The ''BPCPA'', similarly to the ''Trade Practices Act'', should be interpreted as imposing “a high standard of candour, especially on suppliers who choose to commend their wares” (''Rushak v Henneken'', [1991] 6 WWR 596, [1991] BCJ No 2692 (CA) at para 17 [''Rushak'']). | ||
Where there is an embellishing endorsement of the goods, and the supplier knows the goods may be defective in an important respect, these facts must be disclosed | Where there is an embellishing endorsement of the goods, and the supplier knows the goods may be defective in an important respect, these facts must be disclosed. For the consumer to set aside the consumer transaction on the basis that the supplier engaged in a deceptive act or practice, the representation must be material – what is material depends on the individual circumstances of the transaction (''Rushak''). | ||
The court may draw the conclusion that a practice is deceptive on the basis of vague contractual language in circumstances where that language allowed the supplier to claim that additional work was not part of the original contract: see ''British Columbia (Director of Trade Practices) v Van City Construction Ltd'', [1999] BCJ No 2033 (SC) (QL). | The court may draw the conclusion that a practice is deceptive on the basis of vague contractual language in circumstances where that language allowed the supplier to claim that additional work was not part of the original contract: see ''British Columbia (Director of Trade Practices) v Van City Construction Ltd'', [1999] BCJ No 2033 (SC) (QL). | ||
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Under s 9(2), if it is alleged that a supplier committed or engaged in an unconscionable act or practice, the burden of proof is on the supplier to show that the unconscionable act or practice was not committed. | Under s 9(2), if it is alleged that a supplier committed or engaged in an unconscionable act or practice, the burden of proof is on the supplier to show that the unconscionable act or practice was not committed. | ||
'''NOTE:''' As above, s 8(3) sets out a list of circumstances that the court must consider when determining whether a practice is unconscionable. Again, this list is not comprehensive, as the court must consider all of the surrounding circumstances of which the supplier knew or ought to have known. | :'''NOTE:''' As above, s 8(3) sets out a list of circumstances that the court must consider when determining whether a practice is unconscionable. Again, this list is not comprehensive, as the court must consider all of the surrounding circumstances of which the supplier knew or ought to have known. | ||
== C. Remedies and Sanctions == | == C. Remedies and Sanctions == | ||
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=== 3. Bait and Switch === | === 3. Bait and Switch === | ||
If a business advertises a sale, it must stock a reasonable quantity of the item (''Competition | If a business advertises a sale, it must stock a reasonable quantity of the item (''Competition Act'' s 74.04(2)). The bait and switch tactic occurs when a business advertises an item at a bargain price to attract customers but, having no intention of selling the item, does not adequately stock it. Rather, the business intends to use sale pressure to get customers to buy other, higher-priced items. | ||
If the business does not have adequate stock of a sale item, it must issue rain cheques. Rain cheques are not required, however, if the advertisement states “while quantities last”. | If the business does not have adequate stock of a sale item, it must issue rain cheques. Rain cheques are not required, however, if the advertisement states “while quantities last”. | ||
Advertisers who violate this section may be subject to an administrative penalty (s 74.1). A business may avoid penalties stemming from bait and switch tactics if it attempted to supply more of an item than it was able to, if demand for the item was greater than expected, or if the advertisement stated that the sale price was good “while supplies last”. | Advertisers who violate this section may be subject to an administrative penalty (s 74.1). A business may avoid penalties stemming from bait and switch tactics if it attempted to supply more of an item than it was able to, if demand for the item was greater than expected, or if the advertisement stated that the sale price was good “while supplies last”. | ||
== G. False or Misleading Advertising == | == G. False or Misleading Advertising == | ||
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==== c) Negligent Misrepresentation ==== | ==== c) Negligent Misrepresentation ==== | ||
Negligent misrepresentation operates in the same way as innocent misrepresentation, but it arises when the representation is made negligently as opposed to in a completely innocent manner. As with innocent misrepresentation, the remedy is rescission. ''Hedley Bryne v Heller'' ( | Negligent misrepresentation operates in the same way as innocent misrepresentation, but it arises when the representation is made negligently as opposed to in a completely innocent manner. As with innocent misrepresentation, the remedy is rescission. ''Hedley Bryne & Co Ltd v Heller and Partners Ltd'', [1961] 3 All ER 891 (HL) is one example of a case involving negligent misrepresentation. | ||
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