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CONSUMER LAW

Sector-Specific Consumer Law
(01 July 2013)

Motor Vehicle Repair

  1. Overview
    (a) General
    (b) Negligence
    (c) Contract and Warranty
    (d) Combining Causes of Action
    (e) Consumer Protection Act (CPA)
  2. Estimates
    (a) Overview
    (b) Legal Effect of Non-Compliant Estimates; Exceptions
    (c) Content and Disclosure Requirements for Estimates
    (d) Fees for Providing Estimates ('Estimate Fees')
    . Overview
    . Elements of an Estimate Fee
    . Disclosure Before Estimate Fee Charged
    . Estimate Fee Forgiven Where Work Authorized and Done
    (e) Case Note: Parkway Collision v Ryan (Div Ct, 2009)
  3. Consumer Authorization of Repair
    (a) Overview
    (b) Legal Effect of Non-Compliant Authorizations; Exceptions
    (c) Form and Content Requirements for Consumer Authorizations
    . Overview
    . Written
    . 'Otherwise' (Oral, Telephone, etc)
  4. Posting of Signs
  5. Warranties
    (a) CPA-Deemed Warranties
    (b) Where Repair Warranty Breached and Return to Repairer Thereby Impractical
    (c) Voiding of Warranty
    (d) Return of Defective Parts
    (e) Exemptions from 'Repair Warranty'
  6. Return of Removed Parts
    (a) Duty to Return Removed Parts; Consumer Waiver
    (b) Treatment of Removed Parts
    (c) Exceptions
  7. Invoices
  8. Regulation of Cost of Repair
  9. Remedies
------------------------------
CAUTION #1

This sector involves law from the Ontario Consumer Protection Act (CPA). Anyone considering using CPA law should first carefully sort out which of its rules apply to their situation. DO NOT ASSUME THAT BECAUSE YOU FOUND THE CHAPTER DEALING WITH THE RELEVANT ECONOMIC SECTOR THAT YOU HAVE ALL THE RIGHT CPA RULES. The steps to do this properly are explained at this link:

Identifying Which CPA Rules Apply to Your Situation

CAUTION #2

Most disputes over non-payment of bills respecting motor vehicle repair will potentially involve application of the Repair and Storage Lien Act (RSLA). The applicable RSLA provisions are NOT yet integrated into this chapter. I plan a free-standing Legal Guide on the RSLA in the future, and may integrate the relevant parts of that into this chapter.

Simon Shields,
01 July 2013

1. Overview

(a) General

From the consumer's perspective, the subject of motor vehicle repair law is primarily that as codified by Ontario's Consumer Protection Act (CPA), and that is the subject of most of this chapter.

However before the CPA, and still surviving it [CPA 6], was the common law of tort, contract and of course warranties. It is quite possible - and in most cases advisable - to combine both common law and CPA-based causes of action against the defendant 'repairer'. I discuss all of these potential causes of action briefly here.

(b) Negligence

The 'mother' of all torts is negligence. It is the broadest and most widely used of the torts and is by far the most general. Applying to practically any situation where humans and their interests interact, it has its own small insular language of 'duty of care', 'standard of care', 'remoteness'. 'foreseeability' and such but it really amounts to for present purposes is the question of whether the defendant competently performed their job.

As the vast majority of motor vehicle repair claims are under $25,000 in value they will be advanced as civil claims in the Small Claims Court, where judges don't as a rule split hairs over the latest in correct tort terminology. Plaintiffs can expect their situation to be judged on this practical standard of incompetence.

(c) Contract and Warranty

A 'warranties', so often involved in motor vehicle repair legal disputes, are creatures of contract law. Contract law draws a distinction between two primary sorts of contractual terms: 'conditions' and 'warranties'. 'Conditions' are terms so significant and material to the whole contract that their breach entitles the aggrieved party to claim that the 'whole deal is off' and to disregard their duties under a contract - and to sue for losses. A 'warranty' on the other hand, is defined by only giving an entitlement to sue for loss, or damages - so if you still owe payments on the vehicle you are expected to make them.

The motor vehicle sales and repair trades have made much of warranties, printing up scroll-work certificates and making them purchasable commodities unto themselves (eg. 'extended' warranties, 'drive-train' warranties, etc) all for a healthy price.

But when you strip them down to their essence, these much-marketed 'warranties' are often little more than what the law of contract would impose on the relationship in any event (without extra charge): ie. competence, good workmanship and the use of sound parts. In this respect the law of contract is quite similar to the law of tort mentioned broefly above, in that it has little tolerance for carelessness. The most a purchased warranty may offer the consumer is 'less grief' in getting repair or
replacement performed in some circumstances where repair is required, though not al course always - for example if the dealer alleges that damage was caused by misuse.

The Sale of Goods Act and the CPA combine to supplement the common law of breach of contract with several statutory warranties that apply primarily to goods (ie. parts) but as well in one important case to services (ie. repair) as well [CPA 9]:
CPA 9(1)
The supplier is deemed to warrant that the services supplied under a consumer agreement are of a reasonably acceptable quality.

CPA 9(2)
The implied conditions and warranties applying to the sale of goods by virtue of the Sale of Goods Act are deemed to apply with necessary modifications to goods that are leased or traded or otherwise supplied under a consumer agreement.
These statutory warranties are discussed in more detail in Part C, Ch.5, s.3 ["CPA General Consumer Rights: Warranties and Conditions Preserved"].

(d) Combining Causes of Action

Tort claims can - and usually should - be advanced parallel with contract claims, and CPA-based claims (below) for that matter. Normally, combining them all is just good practice in case one runs into technical problems with one or more.

Principles of pleading in that court are discussed generally in the Isthatlegal.ca Small Claims Guide, in Ch.8 ["Pleadings"], but generally that court is quite forgiving of laypersons' attempts to get their points across.

(e) Consumer Protection Act (CPA)

While tort and contract issues above tend to focus on the end-result of the manufacturer's or repairer's efforts, CPA law tends to focus on the repairer-consumer interaction. This is done with an eye to reducing consumer abuses brought about by an imbalance of expertise on the side of the repairer. Most drivers who are not mechanically-trained or experienced have little ability to question the mechanic's assertion that they need a engine head, transmission - or entire motor for that matter, just as the nece ssity and intricacies of lapping a value escape them.

Key CPA terminology includes [CPA 55]:
  • "repairer" means a supplier who works on or repairs vehicles or other prescribed goods;

  • "vehicle" means a motor vehicle as defined in the Highway Traffic Act.
Since no regulation has been passed to define what "other prescribed goods" are, the CPA Part VI 'repair' provisions are really only about motor vehicle repair.

The definition of 'motor vehicle' is drawn from the Highway Traffic Act, and can be quite complex when dealing with things that have only a marginal claim to being a 'vehicle' - or for that matter having a 'motor'. Many new forms of transportation brought about by energy conservation and modern urban living stress the limits of the definition. For present purposes I will not explore this further other than to point out the obvious that overwhelmingly we are talking about personal use cars, trucks, camper-vans and the like, permitted and licensed to travel on Ontario roads. Remember that the CPA generally is limited to 'consumer' transactions, which covers "an individual acting for personal, family or household purposes and does not include a person who is acting for business purposes" [CPA 1].

The CPA motor vehicle repair regime regulates several important aspects of the trade, including among others:
  • Estimates

    By requiring in most circumstances detailed written estimates, and by tying final cost to within 10% of the estimate given.

  • Consumer Authorization

    By clearly requiring and recording that evidence that the consumer gave authorization for work or repairs to be done.

  • Warranties

    By requiring a minimum standard of warranty protection over labour and most parts.

  • Invoices

    By imposing content and detail requirements on invoices for repairs done.

2. Estimates

(a) Overview

The CPA regulates the often difficult area of 'estimates' ["an estimate of the total cost of work on and repairs to the goods being repaired": CPA 55].

(b) Legal Effect of Non-Compliant Estimates; Exceptions

In (c) below I explain the content and disclosure requirements that the CPA imposes for estimates when they are issued. I say 'when' they are issued because no where in the CPA will you find a law that says that motor vehicle repairers must issue estimates before engaging in a consumer agreement for repair work with the consumer. Similarly it is not a prosecutable offence to fail to provide a CPA-compliant estimate in that case either.

Rather the CPA imposes a more immediate remedy for failure to provide a CPA-compliant estimate. With one exception (below), failure by a repairer to provide a repairer with a CPA-complaint estimate ends their right to charge for the "work or repairs" done [CPA 56(1)], and charging for work or repairs done when no CPA-compliant estimate has been given is a prosecutable offence [see Part C, Ch.9. s.11(b); CPA 116(1)].

The single exception is where ALL of the following occur [CPA 56(2)]:
  • where the repairer offers to give an estimate but the consumer declines;

  • the consumer specifically authorizes the maximum amount that he or she will pay for the work and repairs, and

  • the final cost is not more than that consumer-specified amount.
Unless this exception applies, a consumer who receives a non-compliant estimate (or of course no estimate at all), can use that fact as a defence to any action brought by the repairer to recover on their bill.
Case Note: Gary Auto Repair v. Velke
This was an appeal to the Divisional Court of a successful small claims action by an auto repairer on a repair invoice. On appeal the defendant advanced two CPA arguments (both supported by the evidence) that could, if accepted, relieve him of the duty to pay:
  • that the plaintiff has never provided him with a CPA-complaint estimate [CPA 56(1)];

  • that no CPA-compliant authorization was given by the defendant to the plaintiff to do the repair work [CPA 58(1),59].
The appeal court appeared to accept without comment that these provisions countered the plaintiff's claim in contract, and then moved to a consideration of whether the plaintiff could recover in quantum meruit (ie. non-contractual unjust enrichment). It dismissed on that ground as well, reasoning:
[20] The rationale that catches this and other non-complaint repairers seeking equitable relief from the unjust enrichment of their customers is the third of the three elements; of (1) the unjust enrichment of their customer; (2) a corresponding deprivation of the repairer of the value of its work or materials; and (3) the absence of a juristic reason for the enrichment. (Pacific National Investments v. Victoria (City) 2004 SCC 75 (CanLII), [2004] 3 S.C.R. 575 at para. 14.

The Consumer Protection Act 2002 S.O. c. 30, ss 56, 58 and 59 is the present juristic reason.
The court however did not consider (nor was it raised by the unrepresented plaintiff/respondent) the express equitable discretion granted to it by the CPA, under which CPA non-compliance could be excused [this discretion is considered in Ch.7, s.3(d) of the main CPA Legal Guide]:
CPA 93(1)
A consumer agreement is not binding on the consumer unless the agreement is made in accordance with this Act and the regulations.

CPA 93(2)
Despite subsection (1), a court may order that a consumer is bound by all or a portion or portions of a consumer agreement, even if the agreement has not been made in accordance with this Act or the regulations, if the court determines that it would be inequitable in the circumstances for the consumer not to be bound.
(c) Content and Disclosure Requirements for Estimates

To avoid these harsh 'no-charging' consequences, the CPA requires that repairers issue written estimates that disclose the following information [CP Reg 48]:
  • Consumer Name

  • Repairer Name

    The legal name of the individual, partnership or corporation of the repairer, and as well any business name used.

  • Repairer Contact Information

    The telephone number and business address of the repairer, and information respecting other ways, if any, in which the repairer can be contacted, such as the fax number and e-mail address.

  • Motor Vehicle Identification

    The make, model, vehicle identification number and licence number of the vehicle.

  • Odometer Reading

    The odometer reading of the vehicle at the time of the estimate.

  • Description of Work and Repairs

    An exact description of the work to be done on and the repairs to be made to the vehicle.

  • Detailed List of Parts

    An itemized list of the parts to be installed and a statement as to whether each part is a new part provided by the original equipment manufacturer, a new part not provided by the original equipment manufacturer, a used part or a reconditioned part.

  • Cost of Parts

    The amount that the consumer will be charged for each part listed above.

  • Hours, Rates and Labour Charges

    The number of hours to be billed for doing the work and making the repairs, the hourly rate to be charged, any flat rate that will be applied in respect of any of the work or repairs, and the total charge for labour.

    This information is elaborated on below in s.4 ["Posting of Signs: Labour Costs Calculation"].

  • List of Ancillary Goods and Services, with Charges

    An itemized list of all other goods and services, such as storing the vehicle, picking up or delivering the vehicle or providing the consumer with another vehicle on a temporary basis, that are to be provided to the consumer in connection with the transaction and for which the consumer will be charged, and the amount to be charged for each such good or service.

  • Whether Return of Parts Declined

    If the consumer has declined the return of any parts to be removed in the course of work on or repairs to the vehicle, a statement to that effect and the resulting reduction, if any, in price [see s.6, "Return of Removed Parts", below].

  • Total Bill

  • Date of Estimate and Date Estimate Expires

    The date on which the estimate is given and the date after which it ceases to apply.

  • Date of Completion

    The date by which the work and repairs will be completed.

  • Statement Regarding Amount of Final Bill

    That the repairer will not charge the consumer an amount that exceeds the amount estimated above by more than 10 per cent [this corresponds to the requirement set out in CPA 58(2)].
General requirements for disclosure are explained at this link:

General Disclosure Requirements

(d) Fees for Providing Estimates ('Estimate Fees')

In light of the 2011 Court of Appeal ruling in Dean v Mister Transmission (discussed in in the Case Note below), the rules governing payment for fee estimate have been essentially repealed. The following text (bracketed by "+++++") describes the standard interpretation of these provisions [CPA 57] before the Dean 2011 case.

++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

. Overview

Terms can get a little confusing here, but what I was talking about above were 'estimates' - that is estimates for the cost of doing the work and repairs. But what I am going to talk about now are 'estimate fees' - that is, fees charged a consumer for providing the 'estimate'. These are meant to compensate the repairer for the work and parts necessary to dis-assemble or otherwise investigate the problem so that a competent estimate FOR the repairs can then be provided.

. Elements of an Estimate Fee

In what is apparently an effort to give some guidance as to what are legitimate elements or aspects of an estimate fee, the CPA sets out that the following are "deemed" to be included in an estimate fee [CPA 57(2)]:
... the cost of diagnostic time, the cost of reassembling the goods and the cost of parts that will be damaged and must be replaced when reassembling if the work or repairs are not authorized by the consumer.
. Disclosure Before Estimate Fee Charged

Estimate fees may only be charged if the consumer is informed in advance of the charge and its amount [CPA 57(1)]. There is no specific requirement on how this disclosure is made other than the general requirements for all disclosure made under the CPA:

General Disclosure Requirements

. Estimate Fee Forgiven Where Work Authorized and Done

Further, where the work or repairs are both authorized and subsequently completed, no estimate fee may be charged [CPA 57(3)] (ie. the charge for a fee estimate is 'forgiven' or waived by the repairer when the work or repair is authorized and then actually done). It is only where the work or repair is not authorized or done that a fee estimate may legitimately be charged and collected.

This rule is however excepted where "the repairer is unable to obtain, without unreasonable delay, authorization to proceed with the work or repairs" and subsequently 'the goods are reassembled before being worked on or repaired so that the goods can be moved in order to free repair space' [CPA 57(4)] (ie. where the consumer is slow in giving or refusing authorization).

+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
Case Note: Dean v. Mister Transmission (International) Limited (Ont CA, 2011)

After some initial skirmishing which took it up to the Court of Appeal in 2010, this same case returned to the Court of Appeal in 2011, again on appeal from a summary judgment motion dismissing a class action. This time the issue of the estimate fee was directly before the court. The defendant argued that their 'Inspection Service', which was charged to the consumer even if the proposed work was authorized and then performed, was not an 'estimate' within the meaning of the CPA. Rather it was (as drawn from the Reasons in the 2010 case):
[7] The charge for the Inspection Service includes the cost of the removal of the transmission from the vehicle, the complete dismantling of the transmission and the reinstallation of the transmission into the vehicle. This takes a considerable amount of time. Depending on the vehicle, anywhere from three to ten hours of labour are required, and in some cases, up to twelve hours. In the course of this exercise, the nature of the problem requiring repair is discovered.

[8] If the customer goes ahead with the repair, then after the transmission is fixed, the customer is given an invoice, on which the customer is billed separately for the Inspection Service and the price of the repair. The Inspection Service does not include any repair to the vehicle.
In what I find to be tortured reasoning, quite at odds with the accepted pro-consumer purposive statutory interpretation approach that applies to consumer legislation, the 2011 court held that the meaning of an estimate fee when the work was not authorized and - on the other hand - the meaning when it was authorized and done, were different things:
[24] I agree with the motion judge that s. 3(2) of the MVRA and s. 57(2) of the CPA apply only when the consumer does not authorize the repairs to be undertaken. The English versions in both statutes and the French version of s. 57(2) of the CPA explicitly deem certain costs to be included in an estimate fee only if the consumer chooses not to proceed with the repairs. These provisions do not purport to define an estimate fee in general terms, nor do they define an estimate fee if the consumer authorizes the work. A fee for an estimate is not defined in the legislation. [author's emphasis]

[25] The appellant’s proposed interpretation would preclude the repairer from recovering the substantial labour cost necessary to effect repairs simply because the labour cost is also necessary to provide an estimate. Such an approach does not make commercial sense. If the repairer could not charge for the labour and parts necessary to carry out repairs simply because they are deemed to be part of the “fee for the estimate” when the customer does not proceed with repairs, they would essentially be providing the significant labour required for the removal and reinstallation of the transmission for free.

....

[34] For these reasons, I agree with the motion judge that the significant labour costs involved in removing and reinstalling the transmission, as well as the costs of parts that will be damaged and must be replaced when reassembling, are not necessarily included in a fee for an estimate for the purposes of s. 3(3) of the MVRA and s. 57(3) of the CPA.
The court's concern with the interpretation advanced by the appellant/plaintiff revolved then around a concern that, if the repair was authorized, then the re-assembly labour and parts - which presumably was some of the same labour and parts required whether the repair was done or not - could not then be charged to the consumer since it was included within the meaning of the non-chargeable estimate fee. This the court described as a 'windfall' to the consumer which made no commercial sense.

The result of the court's reasoning here is that reassembly labour and parts are not included within an estimate fee when the work is done, only "the cost of diagnostic time". However reassembly parts and labour can be included in an estimate fee when the work is not performed and the consumer is actually charged the estimate fee. In essence the court re-wrote ss.57(1-3) to freely allow auto repairers to charge commercial rates for estimate work - regardless of whether the work is performed or not - excluding only diagnostic time if the work is performed.

If that was the legislative intent it could have been achieved that in one short sentence, not three (as the court's interpretation would have it) confusing sub-sections.

In my opinion the court's statutory interpretation is quite strained, and was driven by what it viewed as a statutory expropriation of the labour and property of auto repairers in the circumstance where, after a diagnostic investigation performed, actual repair work was not subsequently commissioned. It may be that the appellant's statutory interpretation, which certainly was that widely accepted before this case, did create anxiety in the auto repair trade, but it is not for the court to amputate legislation to suit it's own view of what is right - it is for the legislature to correct itself when and if problems arise with it's implementation.
(e) Case Note: Parkway Collision v Ryan (Div Ct, 2009)

In Parkway Collision v Ryan (Div Ct, 2009) the plaintiff towing company successfully sued on their account in Small Claims Court after towing the defendant from the freeway post-accident and storing her vehicle for a time.

The defendant appealed, arguing that the services provided were in the nature of 'motor vehicle repair' and as such the failure of the towing company to provide an estimate allowed them to rely on CPA 56(1), which prohibited the repairer making charges where they had been non-compliant with the estimate provisions. The defendant argued that since the motor vehicle repair estimate disclosure requirements [Reg 48] included the giving of estimates for towing and storage, that those services were included within the terms 'work or repair'[CP Reg 48(10), CPA 56(1)]:
CPA 48 For the purpose of subsection 56 (1) of the Act, an estimate of the total cost of work on and repairs to a vehicle shall be in writing and shall set out the following information:

......

10. An itemized list of all other goods and services, such as storing the vehicle, picking up or delivering the vehicle or providing the consumer with another vehicle on a temporary basis, that are to be provided to the consumer in connection with the transaction and for which the consumer will be charged, and the amount to be charged for each such good or service.
While at first seeming to accept this as conclusive that such charges WERE included within the meaning of "work or repair", the court focussed on the 'impracticalities' that such requirements would create, and the fact that the defendant had not inquired as to the costs of towing and storage before authorizing the work:
Notwithstanding that section 48 of the Ontario Regular 17/05 sets out prescribed requirements for section 56 of the Consumer Protection Act 2002 and that the cost of "picking up or delivering the vehicle" and "storing the vehicle" are included in the Regulation as work or repairs that require an estimate under section 56 of the Consumer Protection Act 2002, it is not only impractical but unreasonable in the circumstances of urgency on the side of the road after a collision that the appellant or any other owner be required to enter into negotiations and receive or demand an estimate of the fee to be charged for towing the vehicle away and storing it until it could be appropriately dealt with.

.....

The services provided by Parkway Collision Ltd. arose out of circumstances of urgency in as much as the appellant's vehicle had to be taken from the scene of the collision because it was inoperable. To find that the Consumer and Protection Act 2002 applied in such circumstances would be unreasonable, particularly since it is in the interests of the safety of the mobile public to clear collision scenes as rapidly as practicable and more particularly if the owner/operator of the vehicle were incapacitated in the collision and were unable to consider a proposed estimate for the services to be provided.
However in dismissing the appeal the court also later seemed to conclude that towing and storage did not constitute "repair" for these purposes:
In the circumstances, neither the towing service provided by B&B Towing from the scene of the collision and ultimately to the premises of Parkway nor the storage of the vehicle at B&B Towing and subsequently at Parkway were "repairs" as defined in the Act or its regulations. Neither B&B Towing nor Parkway proposed to repair the damaged vehicle.

3. Consumer Authorization of Repair

(a) Overview

The CPA also requires that repair work be preceded by an express (ie. not implicit) authorization to do the repair work from the consumer.

(b) Legal Effect of Non-Compliant Authorizations; Exceptions

In (c) below ["Form and Content Requirements for Consumer Authorizations"] I set out the form and content requirements that the CPA requires for such consumer-issued authorizations. Note however that like the rules for 'estimates' (above), there is no actual technical legal requirement that a CPA-compliant authorization be given before work is performed.

In the absence of such a CPA-compliant authorization, the repairer has no unfettered right to charge for the work and repairs done, and the consumer has a defence to any action brought by the repairer to recover on their bill [CPA 58(1)].

On this issue however see the Gary Auto Repair v. Velke case note in s.2(b) above.

(c) Form and Content Requirements for Consumer Authorizations

. Overview

There are two forms of CPA-compliant consumer authorizations: written and 'otherwise' (ie. oral, telephone, etc).

. Written

There are no CPA-mandated form or content requirements for a written authorization, but most credible repairers will be using written estimate forms that have a blank 'authorization' statement added to the bottom. Be sure to get a copies of this both before (when it is an estimate) and after you have signed it (now an authorization).

Otherwise a consumer would be wise to insist on a fully CPA-compliant written estimate [as set out in s.2 above] and to use that as the basis of any separate written authorization which might read as follows (of course keep a copy for your records):
eg.
I authorize you, _______________ (repairer name), to perform work and repair on my motor vehicle [add vehicle ID info here] in accordance with your written estimate of _____________ (date).

Signature
Printed Name
. 'Otherwise' (Oral, Telephone, etc)

The most common forms of non-written consumer authorization will be in-person orally or by telephone. The CPA imposes 'recording' rules for such unwritten authorizations, without which the authorization is ineffective and the consequences discussed in (b) above (inability to charge for work or repair) will apply [CPA 59].

The requirements are that the following information be recorded respecting the authorization [CP Reg 49]:
  • the name of the person giving the authorization;

  • the date and time of the authorization;

  • if given by telephone, the telephone number;

  • if given other than by telephone, "information regarding how the person giving the authorization can be contacted using (that) other method".
4. Posting of Signs

The CPA requires that repairers "who work on or repair vehicles" must post one or more signs, "in such a manner that the disclosure of the information is clear, comprehensible and prominent", with the following information [CPA 60; CP Reg 50]:
  • Estimate Requirements

    The CPA rules respecting when estimates must be provided as set out in s.2(b): ["Estimates and Costs: Legal Effect of Non-Compliant Estimates; Exceptions"], above.

  • Estimate Fees

    The CPA rules respecting 'estimate fees' (ie. fees for giving estimates, not the estimates themselves) as setout in s.2(d): ["Estimates and Costs: Fees for Providing Estimates ('Estimate Fees')"], above.

  • Labour Costs Calculation

    A description of the method that will be used to compute labour charges, including,

    - the hourly rate that will be charged,

    - whether a flat rate will be applied in respect of any of the work or repairs and, if so, the flat rate and the work or repairs to which it will be applied, and

    - whether there will be a charge for diagnostic time and, if so, the manner of determining the amount that will be charged.

  • Whether Repairers Receive Commissions on Parts and If So How

    Whether the repairer or any of the persons doing the work or making the repairs on the repairer's behalf receive any commissions for parts sold and, if so, the manner of determining the commission and the parts to which it applies.

  • List of Chargeable Goods and Services and Costs

    An itemized list of all goods and services, other than parts, shop supplies and labour, for which the consumer may be charged, such as storing the vehicle, picking up or delivering the vehicle or providing the consumer with another vehicle on a temporary basis, and the amount that will be charged for each such good or service.

  • Parts Available

    The CPA rules respecting return of removed parts as setout in s.6: ["Return of Removed Parts"], below.
General requirements for disclosure are explained at this link:

General Disclosure Requirements


5. Warranties

(a) CPA-Deemed Warranties

A warranty is a promise that the consumer will not bear the expense of putting the vehicle back into the originally-promised condition, and may be used as the basis of a common law civil action to recover damages for the consequences of the warranty breach [see more generally re warranties Part C, Ch. 5, s.3: "General Consumer Rights: Warranties and Conditions Preserved"].

Additionally, the CPA imposes a specific 'repair warranty' with respect to new or reconditioned parts installed [IF the parts were "warranted by the manufacturer of the vehicle when the vehicle was sold as new"] and for the labour required to install them. The warranty lasts to the earlier of 90 days or 5,000 kilometres, or to the extent of more favourable terms of a warranty offered by the repairer or parts manufacturer [CPA 63(1); CP Reg 52(b,c)].

This 'repair warranty' is in addition to any other general warranties that may favour the consumer as set out in Part C, Ch.5, s.3 noted above [CPA 63(2)].

(b) Where Repair Warranty Breached and Return to Repairer Thereby Impractical

Where the above 'repair warranty' is breached (not the general warranties mentioned above) such that the vehicle becomes inoperable, and where "it is not reasonable to return the vehicle to the original repairer", then the "person having charge of the vehicle" may have further repair work done at the closest available facility [CPA 63(3)].

The consumer (warranty holder) may then recover from the original repairer the cost of the original repair (not the cost of the later repair), and reasonable towing charges [CPA 63(4)]. The original repairer in turn is then entitled to recover compensation for such re-payments from the supplier of any defective part [CPA 63(8)].

Note that the CPA does not make the cost of the 'new' repair recoverable against the original repairer. Where that amount is appreciably more than the cost of the original repair, and especially where a negligent initial repair has precipitated additional damages, it may be possible to advance a claim for those new costs under the common law.

(c) Voiding of Warranty

A 'repair warranty' is voided with respect to a vehicle part by misuse or abuse of that vehicle part by the consumer [CPA 63(5)], but no repairer shall refuse to honour the warranty unless they have "reasonable grounds" for concluding that such abuse or misuse occured [CPA 63(6)].

(d) Return of Defective Parts

A consumer who seeks to have a warranty honoured by the repairer by means of payment shall, if so requested by the repairer, and if practical to do so, return to the repairer the defective parts, at the repairer's expense [CPA 63(7)].

(e) Exemptions from 'Repair Warranty'

The following are exempt from the 'repair warranty' described in this section [CP Reg 52]:
  • fluids,
  • filters,
  • lights,
  • tires and
  • batteries.

6. Return of Removed Parts

(a) Duty to Return Removed Parts; Consumer Waiver

Repairers must both offer to return to the consumer all parts removed from the vehicle in the course of work or repair, and - unless advised at the time that the work or repair is authorized that such return is unnecessary - they shall return the parts [CPA 61(1)]. That is, consumers can waive this right, but only if they do so at the time that they authorize the work to be done [CPA 61(1)].

(b) Treatment of Removed Parts

The removed parts must be kept separate from parts relating to other jobs, and if return is requested by the consumer, shall be returned to the consumer in a clean container [CPA 61(2)].

(c) Exceptions

The rules set out in (a) and (b) above do not apply to any of the following situations [CPA 61(3)]:
  • Where the new parts are not charged for;

  • where no charge is made for work or repair on the part; or

  • where parts must be returned to the manufacturer or distributor as a term of their replacement under warranty.

7. Invoices

When work or repair is completed, the repairer is required to deliver a detailed written invoice to the consumer, containing the following disclosure [CPA 62; CP Reg 51]:
  • Consumer Name

  • Repairer Name

    The legal name of the individual, partnership or corporation of the repairer, and as well any business name used.

  • Repairer Contact Information

    The telephone number and business address of the repairer, and information respecting other ways, if any, in which the repairer can be contacted, such as the fax number and e-mail address.

  • Motor Vehicle Identification

    The make, model, vehicle identification number and licence number of the vehicle.

  • Date of Authorization of Work or Repairs

  • Date of Completion of Work or Repairs

  • Date of Return of Vehicle to Customer

  • Odometer Reading

    The odometer reading of the vehicle at the time that the consumer authorized the work and when the vehicle is returned to them.

  • Description of Work and Repairs

    An exact description of the work done and the repairs made to the vehicle.

  • Detailed List of Parts

    An itemized list of the parts installed and a statement as to whether each part is a new part provided by the original equipment manufacturer, a new part not provided by the original equipment manufacturer, a used part or a reconditioned part.

  • Cost of Parts

    The amount that the consumer is being charged for each part listed above.

  • List of Shop Supplies Charged

    An itemized list of the shop supplies used and for which the consumer is being charged, and the amount charged for each of the supplies.

  • Labour Charges

    The total labour charge and the method used to compute it, including, the number of hours billed, the hourly rate applied, amounts of any flat rate charges and to what it was applied, and the amount of any charges for diagnostic time.

  • List of Ancillary Goods and Services, with Charges

    An itemized list of all other goods and services charged, such as storing the vehicle, picking up or delivering the vehicle or providing the consumer with another vehicle on a temporary basis, that are to be provided to the consumer in connection with the transaction and for which the consumer will be charged, and the amount charged for each such good or service.

  • Return of Parts Details

    If the consumer has declined the return of any parts to be removed in the course of work on or repairs to the vehicle, a statement to that effect and the resulting reduction, if any, in charge [see s.6, "Return of Removed Parts", above].

  • Total Bill

    Total bill and terms and methods of payment.

  • Amount of Prior Estimate or Limit

    If an estimate was given, its amount. If none was given then the maximum amount of charge authorized by the consumer.

  • Repairer Warranty Details Where Meets or Exceeds CPA Minimum Warranty

    If the repairer's warranty over labour, new original parts, or other new or reconditioned parts is equal to or better than the CPA mandated warranties (earliest of 90 days or 5,000 kilometres) [see s.5: "Warranties", above], then similar time and distance details of the warranty for labour and each part installed.

  • Statement of CPA Minimum Warranty Details

    Statements, with respect to all labour and each part not covered by a warranty that meets or exceeds the CPA minimum warranty (noted immediately above):

    - that the repairer warrants them all to the early of 90 days or 5,000 kilometres;

    - that such warranty may not be waived by the consumer; and

    - that the warranty does not apply to fluids, filters, lights, tires or batteries, or to a part that was not warranted by the manufacturer of the vehicle when the vehicle was sold as new.

  • Currency

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

  • Restrictions, Limitations and Conditions

    Any other restrictions, limitations and conditions that are imposed by the repairer.

  • Consumer Information Statement

    --------------------------------------------------------------
    The Consumer Protection Act, 2002 provides you with rights in relation to having a motor vehicle repaired. Among other things, you have a right to a written estimate. A repairer may not charge an amount that is more than ten (10) per cent above that estimate. If you waived your right to an estimate, the repairer must have your authorization of the maximum amount that you will pay for the repairs. The repairer may not charge more than the maximum amount you authorized. In either case, the repairer may not charge for any work you did not authorize.

    If you have concerns about the work or repairs performed by the repairer or about your rights or duties under the Consumer Protection Act, 2002, you should contact the Ministry of Consumer and Business Services.
    ---------------------------------------------------------------
General requirements for disclosure are explained at this link:

General Disclosure Requirements


8. Regulation of Cost of Repair

While not imposing anything like the extensive consumer cost regulation of Ontario residential tenancies law, the CPA does provide some rules respecting the cost of repairs.

Firstly, and already mentioned above respecting the information content of 'estimates', where an estimate is given repairers may neither charge nor recover from a consumer an amount more than 10% above the amount set out in the estimate [CPA 58(2)].

Secondly, and in an attempt to hinder the practice of charging more for insurance-covered repairs, the CPA provides that [CPA 64]:
CPA 64
No repairer shall give an estimate or charge an amount for work or repairs that is greater than that usually given or charged by that repairer for the same work or repairs merely because the cost is to be paid, directly or indirectly, by an insurance company licensed under the Insurance Act.

9. Remedies

(a) Overview

In addition to the common law law remedies of tort, contract and restitution [discussed in Part A], CPA civil court remedies fall into three categories: 'general', 'sector-specific' (ie. those specific to the motor vehicle repair sector), and 'unfair practices'.

Non-compliance with any of the general consumer rights [see Part C, Ch.5: "General Consumer Rights"] or with most of the sector-specific rights set out in this chapter can usually be addressed using the general remedies explained in Ch.7 ["CPA General Civil Remedies"]. These are summarized in (b) below.

However some sector-specific rights have their own remedial procedures [discussed in (c) below].

Any 'unfair practice' provisions (which deal primarily with 'false, misleading or deceptive' and unconscionable representations) which may have specific relevance to motor vehicle repair are set out in (d) below.

As for non-civil court remedies, the CPA provides for a range of administrative Orders [see Part C, Ch.8: "Administrative Enforcement"] and regulatory prosecutions [see Part C, Ch.9: Prosecutions], neither of which are aggressively pursued by the Ministry of Consumer Services or the Director of the Consumer Protection Branch.

(b) General CPA Civil Remedies

. Overview

This is a summary of the general civil remedies available to consumers under the CPA. The full version of this discussion is at Part C, Ch.7: "General Civil Remedies".

These remedial provisions apply to violations of general CPA consumer rights such as warranties, rules about estimates and illegal charges, prohibitions against negative-option contract formation [see Part C, Ch.5: "General Consumer Rights"] - and as well to non-compliance with most of the specific rights discussed in this chapter.

. Rescission

Typically, supplier (here 'repairer') non-compliance with any CPA right allows the consumer to cancel the consumer agreement at their election, on the delivery of a Notice of Cancellation to the supplier.

However 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).

. Restitution

This form of 'ab initio' cancellation then 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 Notice of Cancellation is delivered, both parties are under specific timelines to complete their specific restitution duties.

. Right of Civil Action

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.

Civil action is also a possibility in some cases where the consumer has not rescinded the consumer agreement fully, for example with the case of illegal charges. In that case there is still a 'Notice' requirement, but after the failure of the supplier to refund the monies the consumer can sue.

. Special Credit Card Remedies

Further, where consumer payments which are now subject to restitution were originally made 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.

. 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.

(c) Sector-Specific Remedies

The CPA's motor vehicle repair rules discussed in this chapter add two immediate forms of remedy as follows:
  • where no CPA-compliant estimate is issued (or otherwise waived by the consumer giving a charge maximum), then the repairer is no longer entitled to charge for the work or repair performed [see s.2(b,c) above];

  • where no written, or unwritten but properly-recorded, authorization for the repair or work is given by the consumer, then the repairer is no longer entitled to charge for the workk or repair performed [see s.3(b,c) above].
(d) Unfair Practices

. Examples of Unfair Practices Relevant to Motor Vehicle Repair

'Unfair practices' are discussed at length in Part C, Ch.6. They primarily address 'false, misleading or deceptive' and unconscionable representations. Specific 'unfair practices' which may be more likely to arise in motor vehicle repair situations may include the following:
  • False or Misleading Representation Re Quality of Goods or Services

    "A representation that the goods or services are of a particular standard, quality, grade, style or model, if they are not."

    This category resembles certain 'conditions and warranties' implied into consumer agreements by the CPA, and as well some imported into the CPA from the Sales of Goods Act. These are discussed in Part C, Ch.5, s.3: "General Consumer Rights: Warranties and Conditions Preserved".

  • False or Misleading Representation Re Used Goods as New

    "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."

  • False or Misleading Representation Re Degree of Use of Goods

    "A representation that the goods have been used to an extent that is materially different from the fact.'

  • False or Misleading Representation Re Timing of Availability

    "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."

    A fact example of this might be where parts required for repairs were promised for delivery on a certain day when the repairer knew that they were presently out-of-stock and that new stock was not expected to be delivered until after the date promised. The repairer is motivated to close the sale and get the money now, and prepared to fob the consumer off with excuses later.

    A 'negligence' version of this could be where the repairer simply never checked stock availability before assuring the consumer of a delivery date.

  • False or Misleading Representation Re the Need for Repair or Replacement

    "A representation that a service, part, replacement or repair is needed or advisable, if it is not."

    This is self-evident. It is particularly applicable to motor vehicle repair.

  • False or Misleading Representation Re Material Facts

    "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."

    A 'material fact' is one which is pivotal to your decision to make a purchase. An example of this might be where the repairer tells you that your car is 'dangerous' to drive in its current condition when the problem is minor.
. Case Note: Thye v 1269273 Ontario Ltd

Thye v 1269273 Ontario Ltd (Ont Sup Ct, 2008) was a trial court judgment where the plaintiff successfully claimed rescission and restitution respecting the purchase of a used motor vehicle. The plaintiff asked if the vehicle had ever been in an accident and the supplier stated that none had been reported, and cited three reports to that effect including a CarFax. The plaintiff claimed that the defendant supplier engaged in the unfair practices of misrepresenting that the car had not
previously been i n an accident, when it had. The court agreed with the plaintiff's expert that it had been in an accident.

The case is interesting as the court approached the unfair practice issue of 'no prior accidents' representations from a traditional breach of contract and negligence perspective, while the CPA has no such requirements and is satisfied by simple falsity - regardless of fault.

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