Consumer Protection from Deceptive and Unconscionable Acts (11:IV)

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.

1. Consumer Transaction

A consumer transaction is a dealing that:

• a) involves a supply of goods, services, membership in a club or organization, or real property by a supplier to a consumer, or
• b) is a solicitation or promotion by a “supplier” with respect to the above mentioned transaction; and is for purposes that are primarily personal, family, or household.

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.

The Act does not apply to securities as defined by the Securities Act, RSBC 1996, c 418 or contracts of insurance under the Insurance Act, RSBC 1996, c 226.

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.

3. Supplier

A supplier means a person, whether in BC or not, who in the course of business participates in a consumer transaction by:

• a) supplying goods, services, or real property to a consumer; or
• 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.

The definition of supplier in section 1 requires that the transaction occur “in the course of the supplier’s 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.

According to section 6, 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.

B. Defining a “Deceptive or Unconscionable Act or Practice”

For the consumer to have a remedy, the supplier’s conduct must involve deceptive or unconscionable acts or practices.

Section 4 of the BPCPA describes “deceptive” acts or practices. Section 8 of the BPCPA describes “unconscionable” acts or practices.

1. Deceptive Acts

A deceptive act or practice is a representation (whether oral, written, visual, descriptive, or other) or any conduct by the supplier that has the capacity, tendency, or effect of deceiving or misleading a consumer or guarantor.

Section 4(3) sets out an extensive but non-exhaustive list of deceptive practices.

If a certain practice is not listed in 4(3), it may still be considered deceptive. The term “deceptive act or practice” was also found in BC’s old Trade Practices Act, which was repealed by the BPCPA in 2004. Thus, looking back at the old Trade Practice Act jurisprudence can shed light on the meaning of “deceptive act or practice.”

The term was interpreted by the court in Director of Trade Practices v. Household Finance Corporation, [1976] 3 W.W.R. 731 (B.C.S.C.) [Household Finance]. To be considered deceptive, it is not necessary that the consumer actually be deceived or misled so long as the act or practice has the “capability, tendency or effect of deceiving or misleading a person”. Such an act may occur before, during or after the transaction. Household Finance suggests that a practice is deceptive for purposes of the BPCPA if it causes the consumer to commit an error in judgment. A plaintiff consumer relying on the supplier’s deceptive practice for an action should show: a)that he or she was actually deceived by the deceptive practice; b)that he or she relied on the deception to the extent that an error in judgment resulted from the deception; and c)that the error in judgment caused loss. 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. It is not necessary that there be any deliberate intention to deceive for a practice or act to be deceptive (Findlay v. Couldwell (1976), 5 W.W.R. 340). 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] BCJ No 2692 (CA) (QL) [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 (Rushak, above).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 v Henneken,[1986] BCJ No 3072 (SC)). 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, [1999] BCJ No 2033.