Difference between revisions of "Consumer Protection from Deceptive and Unconscionable Acts (11:IV)"

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== A. Does the Act Govern the Contract? ==
== A. Does the Act Govern the Contract? ==


For a contract to fall under the ''Business Practices and Consumer Protection Act'' [''BPCPA''], the contract must be 1) a consumer transaction, between 2) a consumer and 3) a supplier, as defined by section 1. Each of the three criteria must be fulfilled before relying on the ''BPCPA''.  
For a contract to fall under the ''Business Practices and Consumer Protection Act'' [''BPCPA''], the contract must be 1) a consumer transaction, between 2) a consumer and 3) a supplier, as defined by section 1. Each of the three criteria must be fulfilled before relying on the ''BPCPA''. The only exceptions to the applicability of the ''BPCPA'' are those listed under s 2 of the ''BPCA'' and include credit reporting and debt collections practices. These sections of where the ''BPCPA'' apply regardless of whether the transaction or matter involves a consumer or not. Additionally, section 2 (2) outlines the limited application of the ''BPCPA'' to contracts involving the sale, lease, mortgage of or charge on land or chattel real.


=== 1. Consumer Transaction ===
=== 1. Consumer Transaction ===
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A consumer transaction is a dealing that:
A consumer transaction is a dealing that:
*a) involves a supply of goods, services, or real property by a supplier to a consumer for primarily personal, family or household purposes, '''or'''
*a) involves a supply of goods, services, or real property by a supplier to a consumer for primarily personal, family or household purposes, '''or'''
*b) is a solicitation, offer, advertisement or promotion by a supplier with respect to the above mentioned types of transactions.  
*b) is a solicitation, offer, advertisement or promotion by a supplier with respect to the above-mentioned types of transactions.  


Except in Parts 4 and 5 of the ''BPCPA'', a consumer transaction includes a solicitation of a consumer by a supplier for a contribution of money or other property by the consumer.
Except in Parts 4 and 5 of the ''BPCPA'', a consumer transaction includes a solicitation of a consumer by a supplier for a contribution of money or other property by the consumer.
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=== 2. Consumer ===
=== 2. Consumer ===


The consumer may reside inside or outside BC. A consumer is an individual, other than a supplier, who participates in a consumer transaction for '''primarily personal, family, or household''' purposes. The definition of consumer in section 1 does not include a guarantor of the consumer who actually participated in the transaction.
The consumer may reside inside or outside BC. A consumer is an individual, other than a supplier, who participates in a consumer transaction for '''primarily personal, family, or household''' purposes. The definition of consumer in section 1 does not include a guarantor of the consumer who actually participated in the transaction.  


=== 3. Supplier ===
=== 3. Supplier ===
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*b) soliciting, offering, advertising, or promoting with respect to a transaction referred to in paragraph (a) of the definition of “consumer transaction”.  
*b) soliciting, offering, advertising, or promoting with respect to a transaction referred to in paragraph (a) of the definition of “consumer transaction”.  


A supplier also includes the successor to, or assignee of, any rights or obligations of the supplier and, except in Parts 3 to 5, includes a person who solicits a consumer for a contribution of money or other property.  
A supplier also includes the successor to, or assignee of, any rights or obligations of the supplier and, except in Parts 3 to 5, includes a person who solicits a consumer for a contribution of money or other property.  


The definition of supplier in section 1 requires that the transaction occur “in the course of business”. Thus, private sales and transactions made by people who are not in the business of dealing with such goods are generally exempt from the ''BPCPA''. If a consumer buys a used car advertised in a newspaper ad placed by a private person, the consumer will likely be restricted to the remedies found in the SGA or at common law. Some remedies in the ''SGA'' are also available only when goods are sold in the ordinary course of business.  
The definition of supplier in section 1 requires that the transaction occur “in the course of business”. Thus, private sales and transactions made by people who are not in the business of dealing with such goods are generally exempt from the ''BPCPA''. If a consumer buys a used car advertised in a newspaper ad placed by a private person, the consumer will likely be restricted to the remedies found in the SGA or at common law. Some remedies in the ''SGA'' are also available only when goods are sold in the ordinary course of business.  


Several suppliers can be involved in one transaction. Therefore, in order for the consumer to sue, he or she need not have a contract with the  supplier who made a deceptive representation or committed an unconscionable act. For example, a consumer buys a car from a dealer and the contract is assigned to a financial institution. The vendor would be a supplier, as would the finance company attempting to collect on the contract (see section 15). Since privity of contract is not necessary, each of the suppliers would be liable under the ''BPCPA'' if they engaged in deceptive or unconscionable practices.  
Several suppliers can be involved in one transaction. Therefore, in order for the consumer to sue, he or she need not have a contract with the  supplier who made a deceptive representation or committed an unconscionable act. For example, a consumer buys a car from a dealer and the contract is assigned to a financial institution. The vendor would be a supplier, as would the finance company attempting to collect on the contract (see section 15). Since privity of contract is not necessary, each of the suppliers would be liable under the ''BPCPA'' if they engaged in deceptive or unconscionable practices.  


According to section 6(2), advertisers who, on behalf of another supplier, publish a deceptive or misleading advertisement are not liable for damages, court actions, or offences, if they are acting in good faith when they accept advertisements for publication. If, however, they knew or ought to have known that the advertisement had the capability, tendency, or effect of deceiving or misleading, then they too may be liable as a supplier under the ''BPCPA''.
According to section 6(2), advertisers who, on behalf of another supplier, publish a deceptive or misleading advertisement are not liable for damages, court actions, or offences, if they are acting in good faith when they accept advertisements for publication. If, however, they knew or ought to have known that the advertisement had the capability, tendency, or effect of deceiving or misleading, then they too may be liable as a supplier under the ''BPCPA''.
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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 Henneken'', [1991] 6 WWR 596, [1991] BCJ No 2692 (CA) at para 17 [''Rushak'']).  
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. 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'').  
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'').  


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