Miscellaneous Consumer Protection Legal Information (11:VIII)

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 to ways to get around such clauses.

1. Statutory Relief

a) Retail Sales of Goods

SGA s 20(2) states that, 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, or .

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.

b) Misrepresentation as to the Clause’s Legal Effect

When the seller has misrepresented 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.

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.

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, which as of May 11, 1998 were increased substantially; 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.”

Section 4(1) of the TLR requires that a telemarketer have a license for each location in which they conduct business. Section 7 outlines the various records a telemarketer must keep for each sales contract entered into, and stipulates that the records be maintained for a period of two years after the contract is entered into by the consumer. Section 8 of the TLR prohibits several acts and practices by telemarketers. Section 8(2) prohibits contacting a consumer by either phone or fax on (a) statutory holidays, (b) outside of the hours of 10 a.m. – 6 p.m. on Saturdays or Sundays, and (c) outside of the hours of 9 a.m. – 9:30 p.m. on any other day. Section 8(3) prohibits contacting a consumer more than once in 30 days for the same transaction. Section 8(4) prohibits telemarketers from blocking their number on the call display of the consumer. Section 8(5) requires that, before the consumer enters into a contract or commits to contributing money, a telemarketer acting on behalf of a supplier disclose (a) the name, business address and telephone number of the supplier, or (b) the purpose of the contribution if requesting a donation. D. Repairer’s Liens The Repairer’s Lien Act [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. 11-37Another common consumer complaint with respect to repairer’s lien seizures is the amount of the bailiff’s fee. A schedule to the RLA limits certain bailiff fees. See BC Regulation 424/81. Bailiffs frequently try to demand excessive seizure fees. 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 of the Motor Vehicle Act, 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 Actprovides 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: (i.)the electronic agent did not provide an opportunity to prevent or correct the error; (ii.) the individual notifies the other party that an error has been made as soon as practicable after learning of the error; (iii.) 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 (iv.) the individual has not received any material benefit or value from the consideration.