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Consumer Protection in Ontario CANADA

Consumer Protection Act, 2002, c.30, Schedule A amended by 2004, c.19, s.7 - comes into force on July 30, 2005

Select requirements of interest to Internet agreements

• General
  • Application.  Act applies in respect of all consumer transactions if the consumer or the person engaging in the transaction with the consumer is located in Ontario when the transaction takes place. [s.2(1)]
  • Disclosure. If a supplier is required to disclose information under this Act, the disclosure must be clear, comprehensible and prominent [s.5(1)]
  • Rights Reserved. Nothing in this Act shall be interpreted to limit any right or remedy that a consumer may have in law. [s.6]
  • No Waiver. The substantive and procedural rights under the Act apply despite any agreement or waiver to the contrary [s.7(1)]
  • Arbitration.  Any term which requires disputes be submitted to arbitration is invalid [s.7(2)]
  • Class proceedings.  Class proceedings are allowed despite any term to the contrary. [s.8(1)]
  • Implied Warranties. Supplier is deemed to warrant that services are of a reasonably acceptable quality [s.9(1)].  Implied conditions and warranties under Sale of Goods Act deemed to apply to goods that are leased or traded or otherwise supplied under a consumer agreement [s.9(2)].  Any term that purports to negate or vary such implied warranties/conditions is void [s.9(3)]
  • False, misleading or deceptive representations are prohibited, as is the making of an unconscionable representation [s.14-18]
  • Late Delivery. A consumer may cancel a future performance agreement at any time before delivery under the agreement or the commencement of performance under the agreement if the supplier, (a) does not make delivery within 30 days after the delivery date specified in the agreement or an amended delivery date agreed to by the consumer in writing; or (b) does not begin performance of his, her or its obligations within 30 days after the commencement date specified in the agreement or an amended commencement date agreed to by the consumer in writing. [s.26(1)]  If the delivery date or commencement date is not specified in the future performance agreement, a consumer may cancel the agreement at any time before delivery or commencement if the supplier does not deliver or commence performance within 30 days after the date the agreement is entered into. [s.26(2)]
• Internet Agreements:
  • Definition.  "internet agreement” means a consumer agreement formed by text-based internet communications [s.20(1)].  “internet” means the decentralized global network connecting networks of computers and similar devices to each other for the electronic exchange of information using standardized communication protocols [s.20(1)].
  • Application. Requirements apply if consumer's total potential payment obligation under the agreement (excluding the cost of borrowing) exceeds a prescribed amount [s.37] - prescribed amount is $50 [Reg. 17/05, s.31]
  • Disclosure.  Supplier must disclose the prescribed information before the consumer enters into an internet agreement [s.38(1)] - the prescribed information consists of [Reg 17/05 s.32]:
    • name of supplier, and if different, the name under which the supplier carries on business
    • telephone number, address of premises from which supplier conducts business, and other ways of contacting supplier if available (such as fax or email)
    • fair and accurate description of the goods and services, including technical requirements, if any
    • 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
    • total amount that the supplier knows would be payable by the consumer under the agreement - amount and frequency of any periodic payments
    • terms and methods of payment
    • date(s) on which delivery, commencement of performance and completion of performance would occur, as applicable
    • for goods and services that would be delivered: (i) place to which would be delivered; and (ii) if the supplier holds out a specific manner of delivery and intends to charge the consumer for delivery, the manner in which the goods and services would be delivered, including the name of the carrier, if any, and including the method of transportation that would be used
    • for services that would be performed, the place where they would be performed, the person for whom they would be performed, the supplier's method of performing them and, if the supplier holds out that a specific person other than the supplier would perform any of the services on the supplier's behalf, the name of that person
    • any additional rights, if any, that supplier agrees the consumer would have
    • currency in which amounts are expressed, if it is not Canadian currency
    • any other restrictions, limitations or conditions that would be imposed by the supplier
  • Additional Disclosure.  The following must be contained in the copy of the internet agreement that the supplier must provided pursuant to Section 39(2) of the Act [Reg. 17/05, s.33(2)]:
    • information listed in section 32 of Reg. 17/05 (see above)
    • the name of the consumer
    • date on which the agreement is entered into
  • Acceptance.  Supplier must provide the consumer with an express opportunity to accept or decline the agreement and to correct errors immediately before entering into it [s.38(2)]
  • Manner of Disclosure.  In addition to complying with section 5, disclosure must be accessible and be available in a manner that ensures that: (a) consumer has accessed the information; and (b) consumer is able to retain and print the information [s.38(3)]
  • Copy, Contents, Delivery.  Supplier must deliver a written copy of the internet agreement within the prescribed time after the consumer enters into the agreement [s.39(1)] and such copy must include such information as is prescribed [s.39(2)] (see above list in Section 32 of Reg 17/05).  Prescribed time is 15 days [Reg. 17/05, s.33(1)].  Delivery is deemed if a copy has been delivered in the prescribed manner [s.39(3)] - any of the following are sufficient [Reg. 17/05, s.33(3)]:
    • transmitting it in a manner that ensures that the consumer is able to retain, print and access it for future reference, such as sending it by email to an email address that the consumer has given the supplier for providing information related to the agreement
    • transmitting it by fax to the fax number that the consumer has given the supplier for providing information related to the agreement
    • mailing or delivering it to an address that the consumer has given the supplier for providing information related to the agreement
    • providing it to the consumer in any other manner that allows the supplier to prove that the consumer has received it
  • Cancellation.  
    • Consumer may cancel at any time from date agreement is entered into until 7 days after consumer receives a copy if: (a) supplier did not disclose the information required under s.38(1) or (b) supplier did not provide the consumer with an express opportunity to accept or decline the agreement or to correct errors immediately before entering into it. [s.40(1)]
    • Consumer may cancel within 30 days after the date the agreement is entered into, if supplier does not comply with a requirement under s.39 (copy, contents, delivery)
• Amendment or renewal
  • Consent - requires either:
    • Explicit consent and not merely by implication [Reg. 17/05, s.41(2)(c)] - also, an acknowledgement that the proposal has been received does not in itself constitute agreement ot the proposal [Reg. 17/05, s.41(3)]
    • Contractual provision covering amendment or renewal [Reg 17/05, s.42(2)]
      • indicates what elements and intervals
      • gives consumer at least one of (i) right to terminate; or (ii) right to retain existing agreement unchanged
      • requires supplier to give consumer advance notice of proposal to amend or renew
  • Application - May not retroactively affect rights and obligations acquired before effective date [Reg. 17/05, s.41(5)/s.42(4)]
  • Contents
    • contains an update of all information that was required to be set out in agreement when it was first entered into and reflects effect of proposal to amend or renew [Reg 17/05, s.41(2)(b)/s.42(5)(a)]
    • in the case where the agreement contains a provision dealing with amendment or renewal, supplier's notice or a proposal to amend or renew must [Reg. 17/05, s.42(5)]:
      • disclose all changes proposed to be made to the agreement, including, for each provision that is to be changed, the text of the provision as it would read after the change;
      • be consistent with above mentioned consent requirements (s.42(2) items 1 & 2)
      • specify the date on which the amendment or renewal would be effective
      • specify a means for the consumer to respond to the notice, which means must involve no cost to the consumer and shall be easy for the consumer to use [Reg. s.17/05, s.42(6)]
      • state what the effect will be if the consumer does not respond to the notice;
      • be provided to the consumer in such a way that is likely to come to his or her attention
      • be provided to the consumer at least 30 days but no more than 90 days before the date on which it is proposed that the amendment or renewal would take effect.
    • except in the case whether the agreement contains a provision dealing with amendment or renewal (and therefore the supplier is not relying upon a renewal subject to section 41), conditional upon supplier providing a written copy of updated version of the agreement to consumer within 45 days after agreement to proposal to amend or renew [Reg. 17/05, s.41(4)]

    [Note: the above is provided for informational purposes only on an "as is" basis.  Many of the provisions are provided in a summary form only.  Please refer to the underlying provisions and obtain independent legal advice]

Links to Legislation

• Consumer Protection Act - 2002, 2004 amendments - e-laws
  • Regulation 17/05
• Consumer Protection Act, R.S.O. 1990, chapter C.31 - e-laws | canLII
  • Regulation 176

Resources

• Canadian Competition Bureau Canadian Code of Practice for Consumer Protection in Electronic Commerce (PDF)
• Canadian Competition Bureau - Application of the Competition Act to Representations on the Internet - Feb. 18, 2003
• Industry Canada - Principles of Consumer Protection for Electronic Commerce
• Internet Sales Contract Harmonization Template - Strategis PDF

Press Releases

• July 18, 2001 - Ministry of Consumer and Business Services

Articles

• Strategis - Consumer Protection Rights in Canada in the Context of Electronic Commerce

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