In a previous post I discussed the protections provided to consumers by Part II the Consumer Protection Act (CPA) of Ontario dealing with Consumers Rights and Warranties. That post is related to this one and both posts should be read to better appreciate the scope and benefit of the Act to Ontario's consumers.
This post deals with Part III of the CPA and deals with what are described as Unfair Practices under the CPA.
The following are listed as unfair practices or being where a person (business) makes a false, misleading or deceptive representation to a consumer. They are not exclusive and other such representations can be found by a court to be an unfair practice.
Any one act found to have occurred by a person (business) means they are deemed to have engaged in an unfair practice.
All unfair practices are prohibited and illegal.
List of Unfair Practices in s. 15 of the CPA:
1. A representation that the goods or services have sponsorship, approval, performance characteristics, accessories, uses, ingredients, benefits or qualities they do not have.
2. A representation that the person who is to supply the goods or services has sponsorship, approval, status, affiliation or connection the person does not have.
3. A representation that the goods or services are of a particular standard, quality, grade, style or model, if they are not.
4. A representation that the goods are new, or unused, if they are not or are reconditioned or reclaimed, but the reasonable use of goods to enable the person to service, prepare, test and deliver the goods does not result in the goods being deemed to be used for the purposes of this paragraph.
5. A representation that the goods have been used to an extent that is materially different from the fact.
6. A representation that the goods or services are available for a reason that does not exist.
7. A representation that the goods or services have been supplied in accordance with a previous representation, if they have not.
8. A representation that the goods or services or any part of them are available or can be delivered or performed when the person making the representation knows or ought to know they are not available or cannot be delivered or performed.
9. A representation that the goods or services or any part of them will be available or can be delivered or performed by a specified time when the person making the representation knows or ought to know they will not be available or cannot be delivered or performed by the specified time.
10. A representation that a service, part, replacement or repair is needed or advisable, if it is not.
11. A representation that a specific price advantage exists, if it does not.
12. A representation that misrepresents the authority of a salesperson, representative, employee or agent to negotiate the final terms of the agreement.
13. A representation that the transaction involves or does not involve rights, remedies or obligations if the representation is false, misleading or deceptive.
14. A representation using exaggeration, innuendo or ambiguity as to a material fact or failing to state a material fact if such use or failure deceives or tends to deceive.
15. A representation that misrepresents the purpose or intent of any solicitation of or any communication with a consumer.
16. A representation that misrepresents the purpose of any charge or proposed charge.
17. A representation that misrepresents or exaggerates the benefits that are likely to flow to a consumer if the consumer helps a person obtain new or potential customers.
Unconscionable Representations-S 15 of the CPA:
An unconscionable representation is also an unfair practice. The following is a list of factors the court may take into account in deciding whether a representation is unconscionable. The list is not exclusive and the court may consider other factors based on the evidence. The question to be asked is did the person making the representation, or their boss, know or ought to know any of the following:
(a) that the consumer is not reasonably able to protect his or her interests because of disability, ignorance, illiteracy, inability to understand the language of an agreement or similar factors;
(b) that the price grossly exceeds the price at which similar goods or services are readily available to like consumers;
(c) that the consumer is unable to receive a substantial benefit from the subject-matter of the representation;
(d) that there is no reasonable probability of payment of the obligation in full by the consumer;
(e) that the consumer transaction is excessively one-sided in favour of someone other than the consumer;
(f) that the terms of the consumer transaction are so adverse to the consumer as to be inequitable;
(g) that a statement of opinion is misleading and the consumer is likely to rely on it to his or her detriment; or
(h) that the consumer is being subjected to undue pressure to enter into a consumer transaction
Renegotiation of the Price-s16 of the CPA:
It is also an unfair practice for a person (business) to use their control or possession of the consumers goods to pressure the consumer into renegotiating the price of a consumer transaction.