Clinician Guide for Consumer Transactions (11:X): Difference between revisions
From Clicklaw Wikibooks
Clinician Guide for Consumer Transactions (11:X) (view source)
Revision as of 03:35, 2 September 2024
, 2 Septemberno edit summary
No edit summary |
No edit summary |
||
| Line 22: | Line 22: | ||
* '''Has the other party already performed all or part of the obligations?''' The ''SGA'' provides that if the buyer has accepted part of the goods, and the contract is not severable, the buyer can no longer treat the contract as terminated for breach without an express or implied term in the contract allowing so (s 15(4)). However, they may be entitled to damages for breach of contract in that situation. This position is subject to qualification. For instance, under s 23 of the ''BPCPA'', concerning future performance contracts, the buyer is entitled to cancel the contract for up to a year when the supplier has not made the appropriate disclosures required by the Act. | * '''Has the other party already performed all or part of the obligations?''' The ''SGA'' provides that if the buyer has accepted part of the goods, and the contract is not severable, the buyer can no longer treat the contract as terminated for breach without an express or implied term in the contract allowing so (s 15(4)). However, they may be entitled to damages for breach of contract in that situation. This position is subject to qualification. For instance, under s 23 of the ''BPCPA'', concerning future performance contracts, the buyer is entitled to cancel the contract for up to a year when the supplier has not made the appropriate disclosures required by the Act. | ||
* '''Has the client expressed their concerns to the other party?''' The other party may not know there is a problem. Where the other party has not been put on notice that there is a problem, issues of estoppel and acquiescence may enter into play. The ''Law and Equity Act'', RSBC 1996, c 253 provides that a party to a contract may, instead of refusing to perform a disputed obligation, perform the obligation under protest if they give reasonable notice to the other party that the performance is under protest, and then perhaps receive compensation for that obligation if it is beyond what was required in the contract (s 62). Letting the other party know may be the simplest and cost-effective way to resolve any problems arising from a consumer transaction. | * '''Has the client expressed their concerns to the other party?''' The other party may not know there is a problem. Where the other party has not been put on notice that there is a problem, issues of estoppel and acquiescence may enter into play. The ''[https://www.bclaws.gov.bc.ca/civix/document/id/roc/roc/96253_01 Law and Equity Act]'', RSBC 1996, c 253 provides that a party to a contract may, instead of refusing to perform a disputed obligation, perform the obligation under protest if they give reasonable notice to the other party that the performance is under protest, and then perhaps receive compensation for that obligation if it is beyond what was required in the contract (s 62). Letting the other party know may be the simplest and cost-effective way to resolve any problems arising from a consumer transaction. | ||
* '''Is either party unable to perform the obligations due to circumstances beyond that party’s control?''' If so, the common law around frustration of contracts and the ''Frustrated Contract Act'', RSBC 1996, c 166 may apply to the transaction. | * '''Is either party unable to perform the obligations due to circumstances beyond that party’s control?''' If so, the common law around frustration of contracts and the ''Frustrated Contract Act'', RSBC 1996, c 166 may apply to the transaction. | ||
* '''Was the client’s attention drawn to any onerous provisions in the contract?''' [https://www.canlii.org/en/on/onca/doc/1978/1978canlii1446/1978canlii1446.html?autocompleteStr=Tilden%20Rent-A-Car%20&autocompletePos=1 | * '''Was the client’s attention drawn to any onerous provisions in the contract?''' ''[https://www.canlii.org/en/on/onca/doc/1978/1978canlii1446/1978canlii1446.html?autocompleteStr=Tilden%20Rent-A-Car%20&autocompletePos=1 Tilden Rent-A-Car Co v Clendenning]'', 1978 CanLII 1446 (ONCA) states that a party seeking to rely on onerous terms in a standard form contract should take reasonable measures to ensure that the other party is aware of those provisions. In ''[https://www.canlii.org/en/bc/bcsc/doc/1988/1988canlii3094/1988canlii3094.html?autocompleteStr=Karroll%20v%20Silver%20Star%20Mountain%20Resorts%20&autocompletePos=1 Karroll v Silver Star Mountain Resorts]'', 1988 CanLII 3094 (BCSC), however, the Court found that there is no general requirement to bring onerous terms to the attention of a signing party; only circumstances in which a reasonable person would have known that the party signing was not consenting to those onerous terms create an obligation on the party tendering a document for signature. | ||
== B. Check the Form and Terms of the Agreement == | == B. Check the Form and Terms of the Agreement == | ||
| Line 71: | Line 71: | ||
The doctrine of laches becomes relevant if one party unreasonably delays pursuing a claim, and the other party is thereby prejudiced. | The doctrine of laches becomes relevant if one party unreasonably delays pursuing a claim, and the other party is thereby prejudiced. | ||
Promissory estoppel occurs when one party promises not to enforce their rights under the contract. In such a case, and where the other party has relied on the promise, it may be inequitable to allow the first party to later enforce the right. For an example of how promissory estoppel can be raised, see [https://www.bailii.org/ew/cases/EWHC/KB/1946/1.pdf | Promissory estoppel occurs when one party promises not to enforce their rights under the contract. In such a case, and where the other party has relied on the promise, it may be inequitable to allow the first party to later enforce the right. For an example of how promissory estoppel can be raised, see ''[https://www.bailii.org/ew/cases/EWHC/KB/1946/1.pdf Central London Property Trust Limited v High Trees House Limited]'', [1947] 1 KB 130, [1956] 1 All ER 256. | ||
In some circumstances, a party to a contract can waive rights within the contract. It may be possible to retract the waiver with reasonable notice. | In some circumstances, a party to a contract can waive rights within the contract. It may be possible to retract the waiver with reasonable notice. | ||
| Line 77: | Line 77: | ||
=== 6. Unconscionability, Undue Influence, and Duress === | === 6. Unconscionability, Undue Influence, and Duress === | ||
Unconscionability, undue influence, and duress can all make a contract voidable. There are two requirements for unconscionability: an imbalance in the relationship of the parties, and an imbalance in the contract. Unconscionability is also dealt with in the ''BPCPA'', ss 8 – 10. See [https://www.canlii.org/en/bc/bcca/doc/1965/1965canlii493/1965canlii493.html?autocompleteStr=Morrison%20v%20Coast%20Finance%20Ltd%20&autocompletePos=1 | Unconscionability, undue influence, and duress can all make a contract voidable. There are two requirements for unconscionability: an imbalance in the relationship of the parties, and an imbalance in the contract. Unconscionability is also dealt with in the ''BPCPA'', ss 8 – 10. See ''[https://www.canlii.org/en/bc/bcca/doc/1965/1965canlii493/1965canlii493.html?autocompleteStr=Morrison%20v%20Coast%20Finance%20Ltd%20&autocompletePos=1 Morrison v Coast Finance Ltd]'', 1965 CanLII 493 (BCCA) and ''[https://www.canlii.org/en/bc/bcca/doc/1978/1978canlii393/1978canlii393.html?autocompleteStr=Harry%20v%20Kreutziger%20&autocompletePos=1 Harry v Kreutziger]'', 1978 CanLII 393 (BCCA) for examples of unconscionability. | ||
Undue influence is the abuse of a relationship of trust and confidence to strongly influence another to make a contract. See [https://www.canlii.org/en/ca/scc/doc/1991/1991canlii69/1991canlii69.html?autocompleteStr=Geffen%20v%20Goodman%20Estate&autocompletePos=1 | Undue influence is the abuse of a relationship of trust and confidence to strongly influence another to make a contract. See ''[https://www.canlii.org/en/ca/scc/doc/1991/1991canlii69/1991canlii69.html?autocompleteStr=Geffen%20v%20Goodman%20Estate&autocompletePos=1 Geffen v Goodman Estate]'', 1991 CanLII 69 (SCC) for an example of undue influence. | ||
Duress is the coercion of the will to the point where it vitiates consent. There must be a contractual promise that is extracted from pressure (such as a demand or threat), where there was no practical alternative but to agree to the demand, and the victim demonstrated they contested to the pressure (such as protesting). See [https://www.canlii.org/en/nb/nbca/doc/2008/2008nbca28/2008nbca28.html?autocompleteStr=greater%20frederict&autocompletePos=1 | Duress is the coercion of the will to the point where it vitiates consent. There must be a contractual promise that is extracted from pressure (such as a demand or threat), where there was no practical alternative but to agree to the demand, and the victim demonstrated they contested to the pressure (such as protesting). See ''[https://www.canlii.org/en/nb/nbca/doc/2008/2008nbca28/2008nbca28.html?autocompleteStr=greater%20frederict&autocompletePos=1 NAV Canada v Greater Fredericton Airport Authority Inc]'', 2008 NBCA 28 for an example of duress, specifically economic duress. | ||
=== 7. Illegality === | === 7. Illegality === | ||
| Line 87: | Line 87: | ||
In the past, Canadian courts would not enforce those contracts created for an illegal purpose. | In the past, Canadian courts would not enforce those contracts created for an illegal purpose. | ||
A leading case in this area is [https://www.canlii.org/en/bc/bcca/doc/1996/1996canlii3340/1996canlii3340.html?autocompleteStr=International%20Paper%20Industries%20Ltd%20&autocompletePos=1 | A leading case in this area is ''[https://www.canlii.org/en/bc/bcca/doc/1996/1996canlii3340/1996canlii3340.html?autocompleteStr=International%20Paper%20Industries%20Ltd%20&autocompletePos=1 International Paper Industries Ltd v Top Line Industries Inc]'', 1996 CanLII 3340 (BCCA) in which a lease for a portion of land was declared invalid, preventing the tenant from exercising the option to renew, because the land was subdivided contrary to the ''[https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/96250_15 Land Title Act]'', RSBC 1996, c 250. | ||
Today, courts may enforce contracts made for an illegal purpose if inequity would otherwise result, or if the purpose of the governing statute is not undermined. See [https://www.canlii.org/en/ca/fca/doc/1997/1997canlii6379/1997canlii6379.html?autocompleteStr=Still%20v%20Canada%20&autocompletePos=1 | Today, courts may enforce contracts made for an illegal purpose if inequity would otherwise result, or if the purpose of the governing statute is not undermined. See ''[https://www.canlii.org/en/ca/fca/doc/1997/1997canlii6379/1997canlii6379.html?autocompleteStr=Still%20v%20Canada%20&autocompletePos=1 Still v MNR (CA)]'', 1997 CanLII 6379 (FCA). The Court will consider the purpose and object of a statutory prohibition when deciding whether the contract is enforceable or not. ''[https://www.canlii.org/en/ca/scc/doc/1998/1998canlii794/1998canlii794.html?autocompleteStr=Continental%20Bank%20Leasing%20Corp%20&autocompletePos=1 Continental Bank Leasing Corp v Canada]'', 1998 CanLII 794 (SCC) at para 67, in particular, offers a good summary of the law of illegality. | ||
=== 8. Duty of Honest Performance === | === 8. Duty of Honest Performance === | ||
| Line 97: | Line 97: | ||
== E. Determine the Limitation Period for Making a Claim == | == E. Determine the Limitation Period for Making a Claim == | ||
The ''Limitation Act'', SBC 2012, c 13 sets out a general time limit of '''2 years''' on starting any claim from the time that the claim is discovered (s 6(1)). Generally, a claim is '''discovered''' on the first day that a person knew or ought to have known that the injury, loss, or damaged had occurred and was caused (or contributed to) by an act or omission of the person against whom the claim is (or may be) made and that the court would be the appropriate means to seek a remedy (s 8). Usually, this will be at the time of the act, but not always. If the person was (or is) a '''minor''' or was (or is) otherwise incapable of managing their affairs due to a disability, special discovery rules apply (ss 18 – 19). There are also special discovery rules in the case of fraud, trust property, and securities amongst others (ss 12 – 17). | The ''[https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/12013_01 Limitation Act]'', SBC 2012, c 13 sets out a general time limit of '''2 years''' on starting any claim from the time that the claim is discovered (s 6(1)). Generally, a claim is '''discovered''' on the first day that a person knew or ought to have known that the injury, loss, or damaged had occurred and was caused (or contributed to) by an act or omission of the person against whom the claim is (or may be) made and that the court would be the appropriate means to seek a remedy (s 8). Usually, this will be at the time of the act, but not always. If the person was (or is) a '''minor''' or was (or is) otherwise incapable of managing their affairs due to a disability, special discovery rules apply (ss 18 – 19). There are also special discovery rules in the case of fraud, trust property, and securities amongst others (ss 12 – 17). | ||
In addition, certain acts provide exceptions to the general limitation period set out in the ''Limitation Act''. For example, the ''Local Government Act'', RSBC 2015, c 1 sets out that an action against a municipality must be commenced within '''6 months''' after the cause of action first arises (s 735). Because of this, you must carefully check through the acts associated with your cause of action to ensure that you will not miss a limitation date. | In addition, certain acts provide exceptions to the general limitation period set out in the ''Limitation Act''. For example, the ''[https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/r15001_00 Local Government Act]'', RSBC 2015, c 1 sets out that an action against a municipality must be commenced within '''6 months''' after the cause of action first arises (s 735). Because of this, you must carefully check through the acts associated with your cause of action to ensure that you will not miss a limitation date. | ||
If the claim was discovered before June 1, 2013, the former ''Limitation Act'' applies. At this point, the claim would be outside the limitation period unless there is an exception in the act for the type of claim brought. Under the former act, if the claim is for breach of contract, s 3(5) of the ''Limitation Act'', RSBC 1996, c 266 states that the limitation period for breach of contract is 6 years. However, under s 3(2)(a), where damages claimed arise from physical damage to persons or property, the limitation period is 2 years, even where the claim is based on contract. In addition, if the claim is for negligence as well, the limitation period is 2 years. | If the claim was discovered before June 1, 2013, the former ''Limitation Act'' applies. At this point, the claim would be outside the limitation period unless there is an exception in the act for the type of claim brought. Under the former act, if the claim is for breach of contract, s 3(5) of the ''Limitation Act'', RSBC 1996, c 266 states that the limitation period for breach of contract is 6 years. However, under s 3(2)(a), where damages claimed arise from physical damage to persons or property, the limitation period is 2 years, even where the claim is based on contract. In addition, if the claim is for negligence as well, the limitation period is 2 years. | ||
