Telephone and Mail Agreements

This webinar is brought to you byCommunity Law School (Sarnia-Lambton) Inc., a nonprofit, registered charitable organization devoted to public legal

education and community advocacy training.

This webinar is facilitated by Your Legal Rights, a website of legal information for community workers and advocates

who work with low income and disadvantaged communities in Ontario.

Funding for this webinar was provided by the Law Foundation of Ontario as part of The Connecting Project

and the Connecting Communities Consortium.

www.communitylawschool.org www.yourlegalrights.on.cawww.lawfoundation.on.ca

Community Law School (Sarnia-Lambton) Inc.

The content of this webinar is based on law that was current on the date the webinar was recorded. Your Legal Rights webinars contain general legal information. They are not intended to be used as legal advice for a specific legal problem. For more information on how to find a lawyer or to contact your local community legal clinic visit: www.yourlegalrights.on.ca/find-services

Your Legal Rights is a project of CLEO and funded by the Law Foundation of Ontario.

Please Note:

About our presenter…

Margaret Capes, B.A. (Hons.), LL.B., M.Ad.Ed, is Legal Education Coordinator of Community Law School (Sarnia-Lambton) Inc. She also acts as Review Counsel for Community Legal Services, as an adjunct professor in the clinical law program, and as faculty advisor for Pro Bono Students Canada and the Dispute Resolution Centre, all at the Faculty of Law, University of Western Ontario. She is the former Executive Director of Community Legal Assistance Sarnia.

Hot Topics in Consumer Protection:

Telephone and Mail Agreements

Webinar Overview

1. What is a “remote agreement” under the Consumer Protection Act, 2002?

2. Rights under the Consumer Protection Act, 2002a) Right to be Free from Unfair Business Practicesb) Rights before entering into the Remote Agreementc) Rights Regarding the Remote Agreementd) Warranties and Quality of Work

3. Enforcement of Rights under the Consumer Protection Act, 2002a) Rescission/Cancellationb) Complaint to the Ministryc) Civil Lawsuits

Appendix A: Resources Appendix B: Detailed List of Unfair Practices under the Consumer Protection

Act, 2002

2012, Community Law School (Sarnia-Lambton) Inc.

What is a Remote Agreement?

A remote agreement is: An agreement made for good or services, the cost of which is over $50

(excluding the cost of borrowing); where one party is in Ontario at the time of the transaction; and where the buyer and the seller are not together at the time of the agreement (s.

20 (1) CPA; s. 2 CPA;s.44 CPA; s. 36 O.Reg. 17/05).

Common examples of remote agreements are contracts made over the telephone, or through the mail.

Remote agreements are not “internet” agreements, as internet agreements are separately covered under the CPA.


Right to be Free from Unfair Practices:What are “Unfair Practices”?

Under the Consumer Protection Act, 2002 (CPA), all agreements must be free from unfair practices on the part of the vendor.

What are “unfair practices”? The CPA specifically prohibits two types of unfair practices:

Making a false, misleading, or deceptive representation (s. 14, CPA), and

Making an unconscionable representation (s. 15, CPA).

The CPA also prohibits a person from retaining custody or control of goods in order to force a consumer into renegotiating the terms of the agreement (s. 16, CPA).


Right to be Free from Unfair Practices:What are “False, Misleading, or Deceptive

Representations?

False, misleading, and deceptive representations generally fall into four categories:

Representations as to the quality, characteristics, condition, or “special” nature of the goods or services;

The current or future availability of the goods or services;

The need for the goods or service; and

The cost, price advantage, or benefit of the good or service to the consumer.

A detailed description of what constitutes “false, misleading, and deceptive representations” can be found in Appendix B.



Right to be Free from Unfair Practices: What are

“unconscionable representations” under the CPA?

Some business practices are so egregious that they are deemed unconscionable under the CPA. They include:

Taking advantage of the disability, ignorance, language barriers, or illiteracy of the consumer;

Grossly overcharging for the good or service;

Using excessively one-sided or otherwise inequitable contracts to the detriment of the consumer;

Obligations that the consumer has no reasonable probability of paying in full;

Misleading statements of opinion that the consumer relies on or is likely to rely on, to their detriment; and

Using pressure tactics to persuade the consumer to enter into the transaction.

Example: Unfair PracticesNothing But Gutterballs

Ernie Swan is an elderly man who still lives in his own home in Fairview, Ontario. Ernie is generally in good health, although it is apparent after even a short conversation with him that Ernie suffers with some mental impairments caused by early onset dementia. When a salesperson from Gutterman Guys called one day to explain that they would be in the neighborhood and could inspect Ernie’s gutters at no charge, Ernie took him up on the inspection offer.

When Gilbert Gutterman arrived the next day, he didn’t look at the gutters, but did ask for and got Ernie’s okay to inspect the ventilation system. When Gilbert telephoned the following day, he convinced Ernie that not only did his gutters need cleaning, his ventilation system did as well. When Ernie asked several times Gilbert to repeat and explain the problems with his gutters Gilbert simply persisted in his assurance that needed cleaning, which Gutterman would do for the low price of $2,000. Ernie finally agreed, and Gilbert picked up the $2,000 cheque later that day. When Ernie’s daughter heard about this, she asked him to show her the contract for the cleaning services. Ernie told her that he never received a contract. A second inspection of both the gutters and the ventilation system by a different contractor revealed that neither actually needed cleaning.

Did Gutternman engage in any unfair practices in this case? In what way(s)?

Did Gutterman engage in any unconscionable representations? In what way(s)?


Rights Before Entering into the Remote Agreement: Information to be Provided and Method of Delivery

Buyers must be provided with certain information by sellers BEFORE the agreement is signed (s. 37(1), CPA; O.Reg. 17/05).

This information can be provided orally or in writing, and the seller can refer the buyer to a preexisting publication (for example at a website or in a brochure) for this information (s. 37(2), CPA; O.Reg. 17/05).

The buyer MUST be given the opportunity to accept or decline these terms, and the ability to correct errors, BEFORE the agreement is signed (s.38, CPA; O.Reg. 17/05).

The information that must be disclosed is very specific and includes the following: The name of the supplier and, if different, the name under which the supplier carries on

business;

The telephone number of the supplier and, if the consumer is required to deal with the supplier at particular premises, the address of that premises;

A fair and accurate description of the goods and services to be supplied to the consumer, including any technical requirements related to the use of the goods or services.


Rights Before Entering into the Remote Agreement: Information to be Provided and Method of Delivery, Cont.

An itemized list of the prices at which the goods and services are to be supplied to the consumer, including taxes and shipping charges.

A description of each additional charge that applies or may apply, such as customs duties or brokerage fees, and the amount of the charge (if the supplier can reasonably determine it).

The total amount that the supplier knows will be payable by the consumer under the agreement, or if the goods and services are to be supplied during an indefinite period, the amount and frequency of periodic payments.

The terms and methods of payment.

As applicable, the date or dates on which delivery, commencement of performance, ongoing performance , and completion of performance will occur.

For goods and services that will be delivered: the place to which they will be delivered, and if the supplier uses a specific manner of delivery and intends to charge the consumer for

delivery, the manner in which the goods and services will be delivered, including the name of the carrier (if any) and the method of transportation to be used.


Rights Before Entering into the Remote Agreement: Information to be Provided and Method of Delivery, Cont.

For services that will be performed, the place where they will be performed, the person for whom they will be performed, the supplier’s method of performing them and, if the supplier holds out that a specific person other than the supplier will perform any of the services on the supplier’s behalf, the name of that person.

Any rights that the supplier agrees the consumer will have in addition to their rights under the CPA, and any obligations by which the supplier agrees to be bound in addition to its obligations under the CPA, with regard to cancellations, returns, exchanges ,and refunds.

If the agreement is to include a trade-in arrangement, a description of the trade-in arrangement and the amount of the trade-in allowance.

The currency in which amounts are expressed, if it is not Canadian currency.

Any other restrictions, limitations and conditions that will be imposed by the supplier


Example: Rights Before Entering into the Remote Agreement

Big Dog Satellite Radio RunaroundLeng, who lives in Fjordville, Ontario, recently purchased a new vehicle which came with a 3-month free, promotional subscription to Big Dog Satellite Radio. Leng really enjoyed the many channels, especially “Guitar Greats”. As the free promotion neared its end, she began receiving materials in the mail and telephone calls from Big Dog about purchasing a subscription. Since she really enjoyed the tunes, Leng decided to take their call after supper one night and discuss her options.

She was advised there was 6 month, 1 year, and lifetime pricing available. Leng considered her budget and decided upon a one-year subscription at $149.99. The salesperson took Leng’s Visa information and advised her how to activate the subscription. When Leng asked if there was any other paperwork, the Big Dog representative said there was not, but to call if she had any questions.

Within 3 days, Leng started to have buyer’s remorse. She just started a new job and really did not have the funds to pay for the satellite service. She called the 1-800 number for Big Dog and was only able to leave a message about her decision. After a month, Leng wondered why she was still receiving the satellite service. She called Big Dog and a customer service representative advised her that the year subscription had been charged to her Visa and that was why she continued to have the service. They refused to cancel the service without a termination fee.

Does the contract with Big Dog meet the requirements of the CPA? How is it defective?

Did Leng receive all of the information to which she is entitled under the CPA? What is missing?

May Big Dog charge Leng a termination fee under these circumstances?


Rights Regarding the Remote Agreement: Timing and Manner

Timing: A copy of the remote agreement must be delivered to the buyer.

The copy of the agreement must be delivered to the buyer at the earliest of: 30 days after the good or service is provided, or Within 60 days of the entering into the agreement (s.46(1) CPA; s. 39(1) O.Reg. 17/05).

Manner:

The remote agreement must be provided in such a way that the buyer can save or print a copy if sent by email.

The allowable methods of delivery are: By email By fax By mail By personal delivery

(s. 46(3) CPA; s. 39(3) O.Reg. 17/05).


Rights Regarding the Remote Agreement: Content

The remote agreement must have very specific information included for it to be valid under the CPA.

The required information includes ALL of the terms outlined in the pre-agreement disclosure discussed earlier, as well as:

The seller’s telephone numbers, address where the sellers conducts business, fax number, email address;

The name of the buyer; and

The date of the agreement.


Rights Regarding the Remote Agreement: Warranties and Quality of Work

The seller is deemed to warrant that the services or good to be provided are of reasonably acceptable quality (s. 9(1) CPA).

This applies to goods or services purchased through the mail and over the telephone.


Example: Rights Regarding the Remote Agreement

Magazine Madness

Stew Fusburn is an avid magazine reader. While Stew reading an article on GPS chips in whales at his dentist’s office, a card dropped from the People’s Geographic. The card asked for basic information about his address, telephone number, email, Visa number , as well as his signature. The card also promised a subscription price that was half the newsstand price. It stated People’s Geographic was published monthly at its head office in Harrowsmith, Ontario.

Stew decided to take the plunge and mailed the card for a 12-month subscription in early April. Stew did not receive or sign any other documents related to the subscription, but his Visa was billed on April 25. The May edition arrived on time, but June and July were over a month late. Stew called People’s Geographic, who assured him that Canada Post was to blame for the delivery problems.

By September, Stew began to receive the magazine in a timely fashion and he thoroughly enjoyed the articles. In December, the magazine stopped arriving altogether. Stew’s calls to the People’s Geographic were not returned, but the company website was up to date and it appeared they were still publishing other magazines. Stew paid nearly $100 for the subscription but now deeply regrets that decision.

In what ways does the subscription “agreement” fail to comply with the CPA?

Did People’s Geographic meet its warranty and quality requirements under the CPA?


Enforcement of Rights under the CPA: Rescission/Cancellation

Under the CPA (s. 18), a consumer may rescind any agreement entered into while the other party engaged in an unfair business practice under the Act.

If rescinded, the agreement and all related agreements, guarantees, and payment security are cancelled as if they never existed.

Notice of rescission must be given within one year after entering into the agreement.

If information is not disclosed in whole or in part in the manner required by the CPA, the buyer may cancel the agreement up to 7 days after receiving a copy of the agreement.

If the remote agreement is not delivered on time and/or not delivered by an approved method and/or does not include all the required terms, the buyer can cancel the agreement within one year of entering the agreement (s. 47(2) CPA).

Rescission and/or cancellation should be done in writing, and the consumer should keep a copy of the cancellation for their records.

Any goods received by the buyer prior to cancellation should be within 15 days of the cancellation (s. 96(1) CPA; s. 81(2) O.Reg. 17/05).

The seller has 15 days from the cancellation date to return funds to the buyer (s. 96(1) CPA; s. 81(2) O.Reg. 17/05).


Enforcement of Rights under the CPA: Complaint to the Ministry

If the rescission or cancellation of the remote agreement does not resolve the matter with the seller, the buyer may file a complaint with the Ministry of Consumer Services (s. 105, CPA).

As private lawsuits are expensive (in terms of time, money. and certainty of result), a consumer may want to first file a complaint with the Ministry of Consumer Services to see if that results in acceptable redress for the consumer.

Online complaint forms are available on the Ministry’s website: www.sse.gov.on.ca/mcs.

The Ministry has broad investigative and remedial powers.

The Ministry may order the seller to comply with the provisions of the Consumer Protection Act, 2002.

The Ministry may also bring charges in Provincial Offences Court.

The Provincial Offences Court may, upon conviction, impose upon an individual a fine of up to $50,000, or imprisonment for a term of not more than two years less a day, or both.

A corporation that is convicted may be fined up to $250,000.


Enforcement of Rights under the CPA: Civil Lawsuits

Civil Lawsuits: Breaches of the Consumer Protection Act and Warranty Issues (ss. 6,7, 18(8), CPA).

The CPA allows for lawsuits for breach of contract .

If damages can be proven as a result of breaches of the CPA, then the buyer can take the seller to Small Claims or Superior Court.

Additionally, given the warranty provisions in the CPA, it is possible a tort claim could be launched if the work is substandard and damages can be proven.

The limitation period for starting a claim is 2 years from the date the breach was discovered under the Limitation Act, 2002


Appendix A: Resources and Contact Information

Ministry of Consumer ServicesConsumer Protection Branch5775 Yonge Street, Suite 1500Toronto, ON M7A 2E5Phone416-326-8800 or 1-800-889-9768Website:www.sse.gov.on.ca/mcs Email: [email protected]

Ministry of Consumer Services website on Cancelling a Contract under the Consumer Protection Act : http://www.sse.gov.on.ca/mcs/en/Pages/Cancel_a_Contract.aspx

Ministry of Consumer Services Complaint Form :http://www.sse.gov.on.ca/mcs/Documents/stel02_046670.pdf Small Claims Court

To pursue a claim before the Small Claims Court it is important to review the Small Claims Court information and forms at the Ministry of Attorney General website:

http://www.attorneygeneral.jus.gov.on.ca/english/courts/scc


Appendix B: Examples of “false, misleading and deceptive representations” (s. 14(2), CPA)

The CPA includes the following as examples of false, misleading, or deceptive representations:

That the goods or services have sponsorship, approval, performance characteristics, accessories, uses, ingredients, benefits, or qualities that they do not have;

That the person supplying the goods or services has sponsorship, approval, status, affiliation or connection that the person does not have;

That the goods or services are of a particular standards, quality, grade, style, or model, if they are not;

That the goods are new, or unused, if they are not or are reconditioned or reclaimed;

That the goods have been used to an extent that is materially different from the fact;

That the goods or services are available for a reason that does not exist;

That the goods or services have been supplied in accordance with a previous representation, if they have not;

That the goods or services, or any part thereof, are available when the person making the representation knows or should know that they are not;


Appendix B: Examples of “false, misleading and deceptive representations” (s. 14(2), CPA), Cont.

That the goods or services, or any part thereof, will be available by a specified time when the person making the representation knows or should know that they will not be available by that time;

That a service, part, replacement or repair is needed or advisable, if it is not;

That a specific price advantage exists, when it does not;

That misrepresents the authority of a salesperson, representative, employee, or agent to negotiate the final terms of the agreement;

That the transaction involves or does not involve rights, remedies, or obligations if the representation is false, misleading, or deceptive;

That misrepresents the purpose or intent of any solicitation of, or communication with, a consumer;

That misrepresent the purpose of any charge or proposed charge; or

That misrepresents or exaggerates the benefits that are likely to flow to a consumer if they help a person obtain new or potential customers.


This webinar was brought to you by Community Law School (Sarnia-Lambton) Inc. and Your Legal Rights with funding

from the Law Foundation of Ontario.

For more information about consumer issues visit the Consumer Law section of Your Legal Rights at www.yourlegalrights.on.ca.

For more public legal information webinars, including webinars on other consumer protection topics, visit:

www.yourlegalrights.on.ca/training.

For information about other consumer issues, social welfare laws, and community advocacy training visit the Community Law School

website at www.communitylawchool.org.

Community Law School (Sarnia-Lambton) Inc.

Telephone and Mail Agreements

Education

Transcript of Telephone and Mail Agreements