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

One difference between common law and BPCPA unconscionability is the onus. Under s 9(2), if it is alleged that a supplier committed or engaged in an unconscionable act or practice, the burden of proof is on the supplier to show that the unconscionable act or practice was '''not''' committed. Another potential key difference between common law unconscionability and BPCPA unconscionability is timing. In ''Uber v Heller'' at para 74, the court states that “Improvidence is measured at the time the contract is formed; unconscionability does not assist parties trying to "escape from a contract when their circumstances are such that the agreement now works a hardship upon them"”. However, s 8(1) states that “an unconscionable act or practice by a supplier may occur before, during or after the consumer transaction”. This difference between common law unconscionability and BPCPA unconscionability is noted in ''Gomel v. Live Nation Entertainment'', Inc., 2021 BCSC 699 at para 71

:'''NOTE:''' As noted above, s 8(3) sets out a list of circumstances that the court must consider when determining whether a practice is unconscionable. Again, this list is not comprehensive, as the court must consider all of the surrounding circumstances of which the supplier knew or ought to have known at the time of the contract. Ultimately, the essential elements of common law unconscionability need to be met.