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

Section 8 of the BPCPA “largely codifies the common law of unconscionability” (''Connor Financial Services International Inc. v. Laughlin'', 2015 BCSC 587 at 27). There are circumstances listed in s 8(3) that the courts must consider when assessing unconscionability, but the essential elements of BPCPA unconscionability and common law unconscionability are the same (''Loychuk v. Cougar Mountain Adventures Ltd.'', 2012 BCCA 122 at para 54). The test for unconscionability is whether there is an “inequality of bargaining power and a resulting improvident bargain” (''Uber Technologies Inc. v. Heller'', 2020 SCC 16 at para 65). Both essential elements are contextual, and the circumstances listed in s 8(3) can aid the court in their assessment. For example, in ''A Speedy Solutions Oil Tank Removal Inc.'', 2021 BCCA 220, common industry practice and what terms competitors would have agreed to were both relevant in determining if the bargain was improvident. Furthermore, as per s 8(3)(b), the court will look at the particular vulnerabilities of the consumer to assess the inequality of bargaining power, such as mental infirmity, ignorance, illiteracy, age or inability to understand the character, nature or language of the consumer transaction, which will trigger the reviewability of that transaction in the consumer’s mind.

One difference between common law and BPCPA unconscionability is the onus. 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. Another potential key difference between common law unconscionability and BPCPA unconscionability is timing. In ''Uber v Heller'' at para 74, the court states that “Improvidence is measured at the time the contract is formed; unconscionability does not assist parties trying to "escape from a contract when their circumstances are such that the agreement now works a hardship upon them"”. However, s 8(1) states that “an unconscionable act or practice by a supplier may occur before, during or after the consumer transaction”. This difference between common law unconscionability and BPCPA unconscionability is noted in ''Gomel v. Live Nation Entertainment'', Inc., 2021 BCSC 699 at para 71

 

:'''NOTE:''' As noted 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 at the time of the contract. Ultimately, the essential elements of common law unconscionability need to be met.

 

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