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Difference between revisions of "Consumer Protection from Deceptive and Unconscionable Acts (11:IV)"
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Consumer Protection from Deceptive and Unconscionable Acts (11:IV) (view source)
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For an example of a class action suit dealing with the ''BPCPA'', see ''Dahl v Royal Bank of Canada'', 2006 BCCA 369. Credit card debtors brought a class action suit against the Royal Bank of Canada, the Canadian Imperial Bank of Commerce, and the Bank of Montreal. In the plaintiffs’ Statement of Claim, they asserted that the defendants failed to disclose the true cost of borrowing by providing the transaction dates for cash advances on their monthly statements rather than the posting dates (the dates the money was actually advanced), allowing more interest to be charged; the court, however, ultimately rejected this argument. | For an example of a class action suit dealing with the ''BPCPA'', see ''Dahl v Royal Bank of Canada'', 2006 BCCA 369. Credit card debtors brought a class action suit against the Royal Bank of Canada, the Canadian Imperial Bank of Commerce, and the Bank of Montreal. In the plaintiffs’ Statement of Claim, they asserted that the defendants failed to disclose the true cost of borrowing by providing the transaction dates for cash advances on their monthly statements rather than the posting dates (the dates the money was actually advanced), allowing more interest to be charged; the court, however, ultimately rejected this argument. | ||
In any action for permanent injunction under s 172(1)(b), the court may restore to any interested person any property or money acquired by deception or unconscionable acts or practices by the supplier (s 172(3)(a)), and may require the supplier to advertise to the public in a way that will assure prompt and reasonable communication to consumers (s 172(3)(c)). | |||
=== 4. Supplier Found Guilty of an Offence === | |||
Under the ''BPCPA'' Section 189 creates a list of offences punishable by both fines and imprisonment, which may be sought by the Crown against a party found in breach of the BPCPA. Under s 190, an individual who commits an offence is liable to a fine of not more than $10,000, or to imprisonment for not more than 12 months, or to both. | |||
== D. Limitation Period == | |||
Under s 193, no prosecution under the ''BPCPA'' may be started more than two years after the date on which the subject matter of the proceeding arose. | |||
Note that s 193 does not apply to civil proceedings. The limitations period in civil proceedings will depend on the nature of the claim and the time period allowed by the ''Limitation Act''. Remember that either the new or the old ''Limitation Act'' may apply; see [[Consumer Transaction Analysis (11:II)#E. Determine the Limitation Period for Making a Claim | Section II.E: Determine the Limitation Period for Making a Claim]]. | |||
== E. Powers of the Director == | |||
Consumer Protection BC is responsible for the administration and enforcement of the ''BPCPA''. Part 10 of the BPCPA contains all inspecting and enforcement powers of Consumer Protection BC, its inspectors, and the Director. The Director has the power to: | |||
*a) use the same powers that the Supreme Court has during trials of civil action for the purposes of an inspection, to summon and enforce the attendance of witnesses, compel witnesses to give evidence under oath or in any other manner, and to produce records; | |||
*b) institute proceedings or assume the conduct of proceedings on behalf of a consumer; | |||
*c) make an order (called a “freeze” order) against assets of a person who is being investigated (s 159). This order can also be attached to property being held in trust for a person under investigation; | |||
*d) refrain from bringing an action against a supplier and accept instead a written undertaking under s 154 of the ''BPCPA''. This undertaking usually takes the form of a formal agreement between the Director and supplier and may involve consumer redress. It is probably one of the most effective remedies under the ''BPCPA'' because it avoids both the time and expense of court proceedings; | |||
*e) issue a compliance order under s 155 of the ''BPCPA'' where compliance is mandatory. The Director can order restitution and compensation to the consumer with this function (s 155(4)) without having to go through court proceedings. If a person fails to comply with a compliance order, he or she is committing an offence under s 189(5) and could face a fine of not more than $10,000, imprisonment for not more than 12 months, or both; | |||
*f) seek declaration and/or injunctive relief on behalf of a consumer, or a class of consumers, and make their applications ex parte (s 172); and | |||
*g) impose an administrative penalty under s 164. | |||
== F. Deceptive Practices Under the Competition Act == | |||
In addition to the protections under the BPCPA, the Canadian Competition Act, RSC 1985, c C-34, proscribes various types of deceptive practices. Some common ones are discussed below: 1.More than One Price Tag (“Double Ticketing”) Shopkeepers often mark goods for sale with more than one price tag. Under the Competition Act, RSC 1985, c C-34, it is an offence for the store to charge anything but the lowest price unless the lower price has been crossed out or the new tag covers the older tag (s 54). The older tag does not have to be unreadable; a line over it or a new tag slightly covering it is fine. However, a cashier may not cross out the older price at the cashier stand. Note that the consumer has no independent right of action. The Competition Bureau, on its website, indicates that “prosecutions under this section have rarely occurred”. 2.Advertising a Sale Price If a business advertises a sale price, it must charge that price throughout the sale period (Competition Act s 74.05). However, the advertiser may be relieved of this obligation if (1) the price was advertised in error and if the advertisement indicated prices were subject to error, or (2) the advertisement is immediately followed by a correction. Advertisers who violate this section may be subject to an administrative penalty (s 74.1). 3.Bait and Switch If a business advertises a sale, it must stock a reasonable quantity of the item (Competition Acts 74.04). The bait and switch tactic occurs when a business advertises an item at a bargain price to attract customers but, having no intention of selling the item, does not adequately stock it. Rather, the business intends to use sale pressure to get customers to buy other, higher-priced items. If the business does not have adequate stock of a sale item, it must issue rain cheques. Rain cheques are not required, however, if the advertisement states “while quantities last”. Advertisers who violate this section may be subject to an administrative penalty (s 74.1). A business may avoid penalties stemming from bait and switch tactics if it attempted to supply more of an item than it was able to, if demand for the item was greater than expected, or if the advertisement stated that the sale price was good “while supplies last”. G.False or Misleading Advertising All advertising, whether on radio or television, in a newspaper or flyer or posted in a store, is subject to federal and provincial laws that prevent businesses from making false claims that may mislead consumers. The BPCPA’s prohibition against deceptive acts and practices extends to advertising, as a representation made before a sale. (s 4(2)). Purchasers have a right to know what they are buying. If a person asks for information and the sales agent volunteers it, the information must be correct and not deceptive. However, not everything a salesperson says is a term of the contract; some comments are mere puffery. Puffery is the sort of comment that is made to promote a product. Such comments are statements of opinion rather than misrepresentations of fact and are not treated as part of the contract. An example of puffery is “It’s a great little car.” An example of a statement of fact is “It's a 1994 Dodge. | |||
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