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CONSUMER LAW

Consumer Protection (Ontario) Law
General CPA Law
(01 July 2013)

Chapter 7 - General Civil Remedies

  1. Overview
    (a) General
    (b) Consumer Rights
    (c) Rescission
    (d) Restitution
    (e) Right of Civil Action When Default in Restitution
    (f) No Contracting Out
    (g) Special Credit Card Remedies
    (h) Common Law Right of Action Preserved
    (i) Parallel but Separate 'Unfair Practices' Regime
  2. No Dictating of Remedial Forums
    (a) Overview
    (b) No Arbitration Exclusivity
    (c) Other Remedies Allowed After Dispute Arises
  3. General Rescission (Cancellation) Remedies
    (a) Overview
    (b) 'Rescission', 'Cancellation' and 'Restitution' Explained
    (c) General Rescission Right on Non-Compliance by Supplier
    . The Rescission Right Explained
    . Problem #1: Is the Right to Rescind Applicable Only to a
    Consumer Agreement, or to the Larger Consumer Transaction?
    (d) Court May Reverse 'Inequitable' Aspects of Rescission [CPA 93(2)]
    . Court's Equitable Discretion to Reverse Rescission in Whole or Part
    . Problem #2: Forum Practicalities of the Equitable Exception
    . Problem #3: The Likely Conservative Judicial Approach to the Equitable Exception
    . Problem #4: Is the Court's Equitable Jurisdiction to Reverse a General Rescission Claim under CPA 93(2) Applicable to Reverse Other Specific CPA Remedies?
    (e) Case Notes
    . Overview
    . GMAC v Cardinali (Ont CA, 2000)
    . Wainwright v Jia (Div Ct, 2009)
    . Parkway Collision v Ryan (Div Ct, 2009)
    . Reid v RL Johnston Masonry (Div Ct, 2009)
    . Polito v 1201553 Ontario Ltd (Ont Sup Ct, 2007)
    . Gary Auto Repair v Velke (Div Ct, 2010)
    . Connect Electric Inc. v Pullen and Greensides (Ont Sup Ct, 2013)
    . Comment
    (f) Notice of Rescission or Cancellation Required
    (g) Effect on Collateral Arrangements
  4. Restitution by Supplier After Rescission
    (a) Overview
    (b) Supplier's Duties
  5. Restitution by Consumer After Rescission: General Rules
    (a) Overview
    (b) Consumer's Duties Regarding Goods in Their Possession: General Rule
    (c) Consumer Duties Re Care of Goods
  6. Restitution by Consumer After Rescission: Special Rules
    (a) Overview
    (b) Modification in Consumer's Restitution Duties for Specific
    Consumer Agreements [Reg 80]
    . To Which Consumer Agreements These Variations Apply
    . Modified Restitution Duties
    . Care of Goods Duties
    (c) Additional Consumer's Restitution Duties for Specific Consumer Agreements [Reg 81]
    . To Which Consumer Agreements These Modifications Apply
    . Modified Restitution Duties
    . Exception for Electronic Goods Where Request to Destroy Received
    (d) Additional Consumer's Restitution Duties Where Solicitation by Consumer and Early Performance of Direct Agreement [Reg 83]
    . When These Additional Duties Apply
    . Consumer Restitution Duties
    . Care of Goods Duties
    (e) Gift Card Agreements Exempt from Recovery and Return of Goods Duties
  7. Consumer-Issued Notices (aka Demand or Request) Procedures
    (a) Overview
    (b) General Situations Where Consumer Notices Required
    (c) General Requirements of Notice
    (d) Court May Disregard Consumer Failure to Give Notice or Demand
    (e) Interpretation of Notice or Demand Contents
  8. Cancellation and Reversal of Credit Card Charges
    (a) Overview
    (b) Where Available
    (c) Failure of Recovery from Supplier is Precondition to Request to Reverse or Cancel Credit Card Charge
    (d) Request (Notice) Procedures
    (e) Credit Card Company Duties
  9. Civil Court Remedies for General CPA Rights
    (a) Overview
    (b) General CPA Rights That May be Civilly-Enforced
    (c) Court Remedies Available
    . Overview
    . Common Law Remedies Background
    . Primary CPA Court Remedy is Restitution; Exception
    . CPA Remedies Can Be Punitive
    . CPA Remedies and Expectation Damages
    (d) CPA Rights and Remedies Do Not by Implication Exclude Legal Rights or Remedies Otherwise Available at Law
    (e) Evidence
    . Overview
    . Civil Court Use of Evidence Obtained in an Official CPA
    Capacity
    (f) Legal Assistance
    (g) Class Actions and the CPA
------------------------------

1. Overview

(a) General

In addition to the Director and Ministry-enforced public remedies of administrative orders [Part C, Ch.8: "CPA Administrative Enforcement"] and regulatory prosecutions [Part C, Ch.9: "CPA Prosecutions"], the Consumer Protection Act (CPA) relies primarily on individual consumers to privately enforce its provisions.

This 'Overview' section summarizes the CPA civil remedies regime, which is more fully explained in the full chapter.

(b) Consumer Rights

The CPA first creates a wide range of supplier duties (and consumer rights) - both generally across the all economic sectors that it applies to, and some specifically to individual sectors. These duties and rights include such things as extensive pre-contract disclosure of contractual terms, restrictions on 'false, misleading or deceptive' representations' (advertising), making estimates binding, and even simple 'cooling-off' rights to cancel the consumer agreement without cause. These and other general con sumer rights explained in Part C, Ch.7 ["General Consumer Rights"].
Case Note: Williams v. Canon Canada Inc. [2011 ONSC 6571 (CanLII)]

This was a class action certification motion in an action brought against the camera manufacturer Canon and it's Canadian affiliate for, amongst other things, violations of the CPA's unfair practice provisions. The court held that while these corporate entities may have engaged in some unfair practices (such as misleading representations), they had no direct consumer agreement of sale with the plaintiffs (rather the retailers did) - and as such damages emanating from rescission, warranty breach, misrepresentations and similar claims were thereby undermined. The court acceded that Canon may have been providing warranty services to the consumers in some instances, but the value of these was low or nil.

Continuing, the plaintiffs further argued that the Canon retailers were agents of Canon the manufacturer, a claim which the court similarly discounted:
[211] Even if I found that the unfair practice could apply to representations relating to the Cameras or that the retailers were, as pleaded, agents of Canon, I would conclude that: (a) there is no positive and general obligation in the statute to disclose defects in the goods; (b) the “slogan”, even if it was properly pleaded, which it has not been, is not a representation, it is an advertising pitch; (c) one cannot reasonably read the warranty as implying the absence of inherent defects – it simply says that if there are defects, Canon will repair them; (d) there is no express representation pleaded that fails to state a material fact. I agree with the submission of the defendants that s. 14(2) requires that there be a pleading of an express representation and no such representation has been pleaded.
The position that advertising slogans are not "representations" for purposes of the Consumer Protection Act is perhaps the least helpful instance of this court's generally unhelpful attitude to the furtherance of the objectives of both the Consumer Protection Act, and the Class Proceedings Act.
Case Note: Magill v. Expedia, Inc. [2013 ONSC 683 (CanLII)]

This was a class action certification motion respecting Expedia online hotel bookings, which involved both 'internet agreements' and 'remote agreements'. The plaintiff alleged a range of violations of CPA requirement including inadequate notice compliance justifying rescission (CPA Part IV), as well as unfair practices (CPA Part III) in the form of misleading representations, unconscionability and pressured renegotiation of prices. Remedies sought included rescission and restitution, damages and punitive damages.

The court refused to certify the plaintiff's CPA Part IV claims as common issues (non-compliance with remote and internet agreement requirements) because rescission under those provisions required that notice be given by the consumer [CPA 40(2) and 47(2)] to the supplier, and this was not pleaded in the claim (it would have been practically impossible to do). Further, reliance on CPA provisions (perhaps CPA 3?) that might excuse the giving of notice was not pleaded either.

The Part III unfair practices claims were also not certified on the basis that they were redundant in light of other common law contract breach arguments made, and that the addition of the CPA aspects invited issues which would require individual determinations.

Overall the court may have been justified in being critical of the manner in which these issues were pleaded, but neither did it make any concerted effort to advance the purposes of either the Consumer Protection Act nor the Class Proceedings Act in protecting consumers from illegal practices.
(c) Rescission

On supplier default of most of these CPA rights the CPA grants the consumer the right to cancel the consumer agreement at the consumer's election, carried out by the delivery of a Notice of Cancellation to the supplier.

The form of cancellation (properly: 'rescission') used in the CPA does not just end the consumer's duties under the consumer agreement from the date of cancellation and then forward into the future. Rather the cancellation or rescission is 'ab initio' ('from the beginning' of the consumer agreement).
Case Note: Weller v Reliance Home Comfort Limited Partnership (Ont CA, 2012)

In this case, which bears directly on the statutory interpretation of a key CPA concept ('termination of a consumer agreement'), it was held that a CPA-granted or required consumer right to terminate a consumer agreement (whether this is applies to a contractual right to terminate is arguable) must be unconditional. In this case the offending conditions which rendered the termination 'right' non-compliant were requirements that the consumer not be in arrears at the time of termination, and that they pay a water heater removal charge:
[16] I agree with the appellant that the right to terminate must be unconditional. An agreement that attaches conditions to the right to terminate does not provide the consumer with a true alternative to accepting the amendment. Depending upon the conditions for termination, the consumer could effectively be coerced into accepting the proposed amendment. Such an interpretation would be inconsistent with the consumer protection objective of the legislation.

...

[17] The agreement in this case attaches at least two conditions to the consumer’s ability to terminate the contract: (1) the consumer must not be in default under the agreement; and (2) the consumer must pay the standard removal charges. These conditions may well be reasonable but in the result the right to terminate is not unconditional. The agreement therefore does not comply with s. 42 of the Regulation and was not binding on the consumer.
(d) Restitution

This form of 'ab initio' cancellation necessitates that both parties, consumer and supplier alike, engage in post-cancellation restitution to each other respecting all that has passed between them since the consumer agreement commenced. Typically this involves the return of goods by the consumer and the return of monies paid by the supplier. In the case of past services performed or perishable goods typically a value compensation provision is imposed on the consumer.

From the point that the Notice of Cancellation is delivered both parties are under specific timelines to complete their respective restitution duties.

(e) Right of Civil Action When Default in Restitution

Failure of a party to fulfil their restitution duties in the time required then automatically triggers a right of civil action in the aggrieved parties (the original Notice of Cancellation doubling as a de facto 'demand' notice). Practically most such claims will be suited to the Small Claims Court with its newly-raised $25,000 monetary jurisdiction, and parallel jurisdiction over the return of chattel property to the same dollar value.

(f) No Contracting Out

Facilitating the operation and effectiveness of this regime are provisions overriding 'fine print' clauses which purport to contract out of or waive CPA rights, or try to impose onerous venue or remedial forum clauses. The CPA tries to ensure that the right of consumers to access an Ontario court respecting their CPA rights is guaranteed.

(g) Special Credit Card Remedies

Further, where consumer payments now subject to restitution were originally paid by credit card, the consumer has a 'back up' right to demand, and then proceed in court, against the credit card issuer should the supplier remain in default of their restitution duties.

(h) Common Law Right of Action Preserved

The CPA rights of action do not prohibit use of common law remedies in tort, contract and restitution and claims may (and when called for, should) be advanced both under the CPA and common law causes of action.

(i) Parallel but Separate 'Unfair Practices' Regime

The 'general' CPA rights of action set out in this chapter are complemented by a similar (and largely self-contained) CPA regime for more serious "unfair practices" (typically, false, misleading, deceptive or unconscionable representations) [see Part C, Ch.6]. The 'unfair practice' rules also create a civil cause of action but have their own unique - but similar - rescission, notice, causes of action and damages provisions.


2. No Dictating of Remedial Forums

(a) Overview

As is discussed in Part C, Ch.5, s.2(b) ["General Consumer Rights: CPA Principles of Interpretation: CPA Applies Despite Contracting Out or Waiver Provisions"], the CPA attempts to prevent suppliers and others from circumventing its rules. While the provisions discussed there prevent contracting out or waiving of the substantive (rights) protections, other attempts have focussed on diverting or limiting remedial avenues into ones more favourable to suppliers.

This technique takes advantage of the unfortunate reality that not all remedial venues for asserting rights are realistically accessible to consumers - due variously to inefficiency, expense, geography or legal complexity. Playing on these systemic weaknesses, suppliers will attempt to contractually limit the available forums in which disputes may be resolved to the ones most accessible and convenient to themselves - which invariably means them being the ones most inaccessible and inconvenient to the consumer.

For example, it is not uncommon in many Ontario consumer agreements to find that the 'fine print' of such agreements purports to require the parties to resolve the dispute under the laws of California, or New York, or wherever the head office of the supplier is located - this despite the fact that the corporation operates retail locations in Ontario, the consumer lives in Ontario, and the transaction occured in Ontario.

The primary legislative protection against such techniques is the general 'no contracting-out or waiver' provision of the CPA:
CPA s.7(1)
The substantive and procedural rights given under this Act apply despite any agreement or waiver to the contrary.
Of course (and as is discussed below in s.9), the natural - and most accessible - remedial route for Ontario consumers to assert their rights is in a local Ontario court, almost always the Ontario Small Claims court, which is a branch of Ontario's Superior Court of Justice that has jurisdiction over orders to a monetary limit of $25,000. As readers will see, it is to this court that the CPA directs most violations and disputes for civil enforcement. This is doubly-sensible when the consumer is faced with claiming both under CPA law and under the common law of contract, which is allowed.

(b) No Arbitration Exclusivity

While limiting disputes to Ontario courts is a fine start, it does not end all possible diversion attempts. Another favorite alternative forum preferred by suppliers is arbitration, which in Ontario at least is governed by the Arbitration Act. This statute, and similar like it in other jurisdictions, is procedurally complex and really best suited for inter-corporate disputes involving millions of dollars. Forcing arbitration procedures onto the usually small disputes involved in consumer transactions would be an expensive absurdity.

Thus the CPA [s.7(2)] further provides that:,
... any term or acknowledgment in a consumer agreement or a related agreement that requires or has the effect of requiring that disputes arising out of the consumer agreement be submitted to arbitration is invalid insofar as it prevents a consumer from exercising a right to commence an action in the Superior Court of Justice given under this Act.
In short, arbitration may still be sought, but not to the exclusion of the consumer's right to pursue the case in Ontario civil courts.

Further, the normal arbitration rule that allows a party to apply to the courts for a 'stay' (suspension) of any court proceedings relating to the matter being arbitrated [Arbitration Act, s.7(1)] - is also suspended when the consumer elects to proceed in court [CPA s.7(5)].
Case Note: Griffin v. Dell Canada Inc. (Ont CA, 2010)
In this case the issue arose of the application of the CPA's 'no compelled arbitration' provisions [CPA 7(2)] to a faulty computer which was purchased before this CPA provision came into force, but which only malfunctioned afterwards. Sharpe JA writing for the court held that the CPA did apply:
[38] In my view, the inevitable conclusion that flows from the court’s discussion of the issue is that where, as in the present case, not all the facts giving rise to the claim arose until after the effective date of the legislation, the legislation governs, even though the contract was concluded prior to the effective date.
Case Note: Seidel v TELUS Communications Inc. (SCC, 2011)
In this case a 'no contracting out' or waiver provision [similar to Ontario's s.7(1) above] in BC's consumer protection legislation was applied to preclude a supplier from insisting on contractual arbitration of consumer disputes, and from preventing a party from commencing a class action. This result can be contrasted with the result in Dell Computer Corp. v Union des consommateurs (SCC, 2007) where, absent such an override provision in Quebec consumer protection law (at that time), an arbitration clause was upheld and thus prevented the commencement of a class action consumer claim.
(c) Other Remedies Allowed After Dispute Arises

That said, AFTER a dispute has actively arisen where a consumer could sue, the consumer is free to agree to use the remedial procedures that the law normally offers them [CPA s.7(3)] (including but not limited to arbitration). That is, arbitration cannot be imposed on them by virtue of any 'fine print' contract provisions, but it can be voluntarily opted-in by the consumer after a dispute has arisen.

Basically, these provisions preserve the consumer's option to elect alternative approaches (eg. different geographical venue, arbitration), while still avoiding the 'forced-arbitration' effect of 'fine-print' exclusivity clauses such as are addressed in (b) above.

If such alternative procedures are agreed to and completed, then any resulting settlements or decisions are binding on the parties [CPA s.7(4)].

Because arbitration is allowed in such optional 'post-dispute' scenarios, the right of a party to apply to court to stay related court proceedings is re-instated if and when arbitration is elected for [Arbitration Act, s.7(1); CPA s.7(5)].

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