Consumer Protection through Professional Regulation Looking Ahead: Council on Licensure, Enforcement...
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Consumer Protection through Professional Regulation Looking Ahead: Council on Licensure, Enforcement and Regulation Toronto Symposium June 15, 2010 © CLEAR 2010 Ontario’s Consumer Protection Act, 2002. Jacob Bakan Legal Services Branch Ministry of Consumer Services
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Transcript of Consumer Protection through Professional Regulation Looking Ahead: Council on Licensure, Enforcement...
Consumer Protection through Professional Regulation
Looking Ahead:
Council on Licensure,
Enforcement and Regulation
Toronto Symposium
June 15, 2010© CLEAR 2010
Ontario’s Consumer Protection Act, 2002.
Jacob BakanLegal Services Branch Ministry of Consumer
Services
Council on Licensure,
Enforcement and Regulation
Toronto Symposium
June 15, 2010
Consumer Protection Act, 2002
• Consumer Protection Act, 2002 (“CPA”) is law of general application.
• Applies to “consumer transactions” with “consumers”.
• “Consumer transaction” defined as “any act or instance of conducting business or other dealings with a consumer.”
• “Consumer” defined as “an individual acting for personal, family or household purposes and does not include a person who is acting for business purposes”.
• Business to business transactions not covered.
Council on Licensure,
Enforcement and Regulation
Toronto Symposium
June 15, 2010
Excluded Transactions
• Several categories of transactions excluded from the CPA. Some examples include:– real property– residential tenancies– securities – most financial products and services– gas marketers and energy retailers (currently
covered, but unproclaimed provision will exclude)
– professional services listed in regulation
Council on Licensure,
Enforcement and Regulation
Toronto Symposium
June 15, 2010
Excluded Professional Services
• Professional services provided by a person governed by, or subject to any of the following Acts:– 1. The Architects Act.– 2. The Certified General Accountants
Association of Ontario Act, 1983.– 3. The Chartered Accountants Act, 1956.– 4. The Drugless Practitioners Act.– 5. The Law Society Act.– 6. The Ontario College of Teachers Act, 1996.– 7. The Professional Engineers Act.
Council on Licensure,
Enforcement and Regulation
Toronto Symposium
June 15, 2010
Excluded Professional Services Cont.
– 8. The Professional Foresters Act, 2000.– 9. The Professional Geoscientists Act, 2000.– 10. The Public Accountancy Act. – 11. The Regulated Health Professions Act, 1991
and any Act named in Schedule 1 to the Regulated Health Professions Act, 1991.
– 12. The Social Work and Social Service Work Act, 1998.
– 13. The Society of Management Accountants of Ontario Act, 1941.
– 14. The Surveyors Act.– 15. The Veterinarians Act.
Council on Licensure,
Enforcement and Regulation
Toronto Symposium
June 15, 2010
Excluded Professional Services Cont.
• Professional services provided at any of the following facilities are exempt:– 1. An institution under the Mental Hospitals
Act.– 2. A hospital under the Public Hospitals Act.– 3. A pharmacy under Part VI of the Drug
and Pharmacies Regulation Act.• Services provided at an independent health
facility pursuant to licence under Independent Health Facilities Act are exempt.
Council on Licensure,
Enforcement and Regulation
Toronto Symposium
June 15, 2010
General Consumer Contract Rules (examples)
• Consumer cannot waive protections in CPA.• Consumer cannot waive right to participate in class
proceeding.• Limitation on mandatory arbitration clauses.• Supplier cannot charge more than 10% of estimate
given in an agreement.• Ambiguities in agreement to be interpreted in
favour of consumer.• Supplier cannot demand payment for unsolicited
goods.• Most ongoing contracts cannot be amended,
renewed or extended without meeting specified criteria.
Council on Licensure,
Enforcement and Regulation
Toronto Symposium
June 15, 2010
Prohibition on Unfair Practices
• Offence to commit unfair practice.• Types of unfair practices
– False, Misleading and Deceptive Representations.
– Unconscionable representations.– Holding consumer’s goods in custody to
renegotiate a price.
Council on Licensure,
Enforcement and Regulation
Toronto Symposium
June 15, 2010
False, Misleading and Deceptive Representations.
• Prohibition of false, misleading and deceptive representations eliminates ability for business to deny responsibility for pre-contractual inducements including verbal inducements.
• Language of provision similar to language found in most consumer protection law in U.S. and Canada.
Council on Licensure,
Enforcement and Regulation
Toronto Symposium
June 15, 2010
Unconscionable Representations
• No definition of “unconscionable representation” given.
• Factors that can be considered in determining if representation is unconscionable include such things as:– Consumer is not reasonably able to protect
his or her interests because of disability, ignorance, inability to understand the language of agreement or similar factors.
– Transaction is excessively one-sided.– Undue pressure to enter a transaction.
Council on Licensure,
Enforcement and Regulation
Toronto Symposium
June 15, 2010
Minimum Contract Requirements
• Contracts with future obligations for $50 or more must meet certain basic requirements including such things as:
• Consumer’s name• Supplier’s name and contact information• Fair and accurate description of goods and
services.• Prices & terms of payment.• Delivery or commencement dates and
places.
Council on Licensure,
Enforcement and Regulation
Toronto Symposium
June 15, 2010
Sector Specific Requirements
• Special rules for certain areas such as:– Direct agreements (which includes door to door sales)– Remote agreements (which includes telephone sales)– Internet sales– Time Share agreements– Personal development agreements (which includes gym
memberships).– Motor vehicle repairs– Leases– Credit agreements– Loan brokering– Credit repair
• Where special rules exist, CPA requires them to be disclosed.
Council on Licensure,
Enforcement and Regulation
Toronto Symposium
June 15, 2010
Consequences for Non-compliance
• Breach of provisions create quasi-criminal and civil consequences.
• Provincial offence to breach several provisions.– Investigations typically commenced after attempts
at consumer-supplier mediation have failed.– Ministry of Consumer Services investigators lay
charges and Ministry of the Attorney General lawyers prosecute before Ontario Court of Justice.
– Court has power on conviction to order fines, incarceration, restitution or compensation.
Council on Licensure,
Enforcement and Regulation
Toronto Symposium
June 15, 2010
Civil consequences fornon-compliance
• Agreement not binding on consumer unless made in accordance with CPA. (Court has limited discretion to bind consumer where it would be inequitable not to do so.)
• If agreement does not meet CPA disclosure requirements, consumer has extended period to cancel, typically one year.
• If consumer cancels agreement, supplier typically has obligation to repay all amounts under agreement.
Council on Licensure,
Enforcement and Regulation
Toronto Symposium
June 15, 2010
Civil Consequences for Non-compliance
• Consumer has one year to rescind any agreement if business has engaged in unfair practice.
• If full rescission not possible, consumer entitled to recover amount by which the consumer’s payment exceeds value of goods or services to the consumer.
• Court has power to award damages.
Council on Licensure,
Enforcement and Regulation
Toronto Symposium
June 15, 2010
Administrative Enforcement.Misleading Representations.• If Director believes person is making
false, misleading or deceptive representation, she can:– Order person to stop publication of
representation.– Order person to retract the
representation and publish correction.
• Subject of order has right to a hearing.
Council on Licensure,
Enforcement and Regulation
Toronto Symposium
June 15, 2010
Administrative Enforcement.Compliance Orders.
• Director has power to issue compliance orders requiring person to comply with any provision the CPA.
• Violation of compliance order an offence.
• Subject of compliance order has right to a hearing.
Council on Licensure,
Enforcement and Regulation
Toronto Symposium
June 15, 2010
Administrative Enforcement.Voluntary Compliance Orders.
• Person may enter into undertaking of voluntary compliance with the Director.
• Has all the force of an order from the Director.
• Undertaking may provide for:– Provision of compensation to consumer.– Payment of investigation and legal costs.– Other actions the Director considers appropriate.
• Director may require undertaking to be secured by bond.
Council on Licensure,
Enforcement and Regulation
Toronto Symposium
June 15, 2010
Administrative Enforcement.Freeze Orders.
• Director may order asset freeze.• Order applies to supplier and any
person holding supplier’s assets or trust funds.
• Freeze order can be issued where there is search warrant, compliance order, or undertaking of voluntary compliance.
• Person has right to a hearing.
Council on Licensure,
Enforcement and Regulation
Toronto Symposium
June 15, 2010
Speaker Contact Information
Jacob BakanMinistry of the Attorney GeneralLegal Services Branch of the Ministry of Consumer Services.6th Floor, Ferguson Block77 Wellesley Street, Toronto, ON M7A
1N3416 314-4563Email: [email protected]
