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

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 The term “deceptive act or practice” was also found in BC’s old ''Trade Practices Act'', which was repealed by the ''BPCPA'' in 2004.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.