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Consumer Protection Act, 2002

S.O. 2002, CHAPTER 30
Schedule A

Consolidation Period: From July 1, 2008 to the e-Laws currency date.

Last amendment: 2008, c. 9, s. 79.

SKIP TABLE OF CONTENTS

CONTENTS

PART I
INTERPRETATION AND APPLICATION

Interpretation

1.  In this Act,

“consumer” means an individual acting for personal, family or household purposes and does not include a person who is acting for business purposes; (“consommateur”)

“consumer agreement” means an agreement between a supplier and a consumer in which the supplier agrees to supply goods or services for payment; (“convention de consommation”)

“consumer transaction” means any act or instance of conducting business or other dealings with a consumer, including a consumer agreement; (“opération de consommation”)

“credit card” means a card or device under which a borrower can obtain advances under a credit agreement, as defined in Part VII, for open credit; (“carte de crédit”)

“Director” means the person designated as the Director under the Ministry of Consumer and Business Services Act; (“directeur”)

“future performance agreement” means a consumer agreement in respect of which delivery, performance or payment in full is not made when the parties enter the agreement; (“convention à exécution différée”)

“goods” means any type of property; (“marchandises”)

“initiation fee” means a fee in addition to an annual membership fee; (“droit d’entrée”)

“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; (“Internet”)

“internet gaming site” means an internet site that accepts or offers to accept wagers or bets over the internet,

(a) as part of the playing of or participation in any game of chance or mixed chance and skill that is to take place inside or outside of Canada, or

(b) on any contingency or on any event that may or is to take place inside or outside of Canada,

including, without restricting the generality of the foregoing, a casino game, card game, horse race, fight, match, sporting event or contest; (“site de jeux en ligne”)

“loan broker” means,

(a) a supplier of loan brokering, or

(b) a person who holds themself out to be a person described in clause (a); (“courtier en prêts”)

“loan brokering” means services or goods that are intended to assist a consumer in obtaining credit or a loan of money, including obtaining credit or a loan of money from the loan broker who is providing the services or goods to the consumer; (“courtage en prêts”)

“Minister” means the Minister of Consumer and Business Services or such other member of the Executive Council to whom the administration of this Act may be assigned under the Executive Council Act; (“ministre”)

“Ministry” means the Ministry of Consumer and Business Services; (“ministère”)

“officer” includes the chair and any vice-chair of the board of directors, the president and any vice-president, the secretary and assistant secretary, the treasurer and assistant treasurer and the general manager and assistant general manager of the corporation or a partner or general manager and assistant general manager of a partnership, any other individual designated as an officer by by-law or resolution or any other individual who performs functions normally performed by an individual occupying such office; (“dirigeant”)

“open credit” means credit or a loan of money under a credit agreement, as defined in Part VII, that,

(a) anticipates multiple advances to be made as requested by the borrower in accordance with the agreement, and

(b) does not define the total amount to be advanced to the borrower under the agreement, although it may impose a credit limit; (“crédit en blanc”)

“payment” means consideration of any kind, including an initiation fee; (“paiement”)

“prescribed” means prescribed by regulations made under this Act; (“prescrit”)

“regulations” means regulations made under this Act; (“règlements”)

“representation” means a representation, claim, statement, offer, request or proposal that is or purports to be,

(a) made respecting or with a view to the supplying of goods or services to consumers, or

(b) made for the purpose of receiving payment for goods or services supplied or purporting to be supplied to consumers; (“assertion”)

“services” means anything other than goods, including any service, right, entitlement or benefit; (“services”)

“supplier” means a person who is in the business of selling, leasing or trading in goods or services or is otherwise in the business of supplying goods or services, and includes an agent of the supplier and a person who holds themself out to be a supplier or an agent of the supplier; (“fournisseur”)

“trade-in allowance” means the greater of,

(a) the price or value of the consumer’s goods or services as set out in a trade-in arrangement, and

(b) the market value of the consumer’s goods or services when taken in trade under a trade-in arrangement; (“valeur de reprise”)

“trade-in arrangement” means an arrangement under which a consumer agrees to sell his or her own goods or services to the supplier and the supplier accepts the goods or services as all or part of the consideration for supplying goods or services; (“convention de reprise”)

“Tribunal” means the Licence Appeal Tribunal established under the Licence Appeal Tribunal Act, 1999 or such other tribunal as may be prescribed; (“Tribunal”)

“year” means a period of 365 consecutive days or, if the period includes February 29, 366 consecutive days. (“année”) 2002, c. 30, Sched. A, s. 1; 2004, c. 19, s. 7 (1-4); 2006, c. 34, s. 8 (1).

Note: On a day to be named by proclamation of the Lieutenant Governor, the definition of “year” is repealed by the Statutes of Ontario, 2008, chapter 9, subsection 79 (1). See: 2008, c. 9, ss. 79 (1), 81.

Application

2.  (1)  Subject to this section, this 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. 2002, c. 30, Sched. A, s. 2 (1).

Exceptions

(2)  This Act does not apply in respect of,

(a) consumer transactions regulated under the Securities Act;

(b) financial services related to investment products or income securities;

(c) financial products or services regulated under the Insurance Act, the Credit Unions and Caisses Populaires Act, 1994, the Loan and Trust Corporations Act or the Mortgage Brokerages, Lenders and Administrators Act, 2006;

(d) consumer transactions regulated under the Commodity Futures Act;

(e) prescribed professional services that are regulated under a statute of Ontario;

(f) consumer transactions for the purchase, sale or lease of real property, except transactions with respect to time share agreements as defined in section 20; and

(g) consumer transactions regulated under the Residential Tenancies Act, 2006. 2002, c. 30, Sched. A, s. 2 (2); 2006, c. 17, s. 249; 2006, c. 29, s. 60.

Same

(3)  This Act does not apply to the supply of a public utility or to any charge for the transmission, distribution or storage of gas as defined in the Ontario Energy Board Act, 1998 if such charge has been approved by the Ontario Energy Board. 2002, c. 30, Sched. A, s. 2 (3).

Marketers of gas, retailers of electricity

(4)  Despite subsection (3), this Act applies to a transaction with,

(a) a gas marketer who is a supplier; and

(b) a retailer of electricity who is a supplier. 2002, c. 30, Sched. A, s. 2 (4).

Definitions

(5)  In this section,

“gas marketer” means a gas marketer as defined in Part IV of the Ontario Energy Board Act, 1998; (“agent de commercialisation de gaz”)

“public utility” means water, artificial or natural gas, electrical power or energy, steam or hot water; (“service public”)

“retailer of electricity” means a retailer as defined in the Electricity Act, 1998. (“détaillant en électricité”) 2002, c. 30, Sched. A, s. 2 (5).

Anti-avoidance

3.  In determining whether this Act applies to an entity or transaction, a court or other tribunal shall consider the real substance of the entity or transaction and in so doing may disregard the outward form. 2002, c. 30, Sched. A, s. 3.

Note: On a day to be named by proclamation of the Lieutenant Governor, the French version of section 3 is amended by the Statutes of Ontario, 2008, chapter 9, subsection 79 (2) by adding “judiciaire ou autre” after “tribunal”. See: 2008, c. 9, ss. 79 (2), 81.

Consumer agreements

4.  A consumer agreement that meets the criteria of more than one type of agreement to which this Act applies shall comply with the provisions of this Act and of the regulations that apply to each type of agreement for which it meets the criteria, except where the application of the provisions is excluded by the regulations. 2004, c. 19, s. 7 (5).

Disclosure of information

5.  (1)  If a supplier is required to disclose information under this Act, the disclosure must be clear, comprehensible and prominent. 2002, c. 30, Sched. A, s. 5 (1).

Delivery of information

(2)  If a supplier is required to deliver information to a consumer under this Act, the information must, in addition to satisfying the requirements in subsection (1), be delivered in a form in which it can be retained by the consumer. 2002, c. 30, Sched. A, s. 5 (2).

PART II
CONSUMER RIGHTS AND WARRANTIES

Rights reserved

6.  Nothing in this Act shall be interpreted to limit any right or remedy that a consumer may have in law. 2002, c. 30, Sched. A, s. 6.

No waiver of substantive and procedural rights

7.  (1)  The substantive and procedural rights given under this Act apply despite any agreement or waiver to the contrary. 2002, c. 30, Sched. A, s. 7 (1).

Limitation on effect of term requiring arbitration

(2)  Without limiting the generality of subsection (1), 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. 2002, c. 30, Sched. A, s. 7 (2).

Procedure to resolve dispute

(3)  Despite subsections (1) and (2), after a dispute over which a consumer may commence an action in the Superior Court of Justice arises, the consumer, the supplier and any other person involved in the dispute may agree to resolve the dispute using any procedure that is available in law. 2002, c. 30, Sched. A, s. 7 (3).

Settlements or decisions

(4)  A settlement or decision that results from the procedure agreed to under subsection (3) is as binding on the parties as such a settlement or decision would be if it were reached in respect of a dispute concerning an agreement to which this Act does not apply. 2002, c. 30, Sched. A, s. 7 (4).

Non-application of Arbitration Act, 1991

(5)  Subsection 7 (1) of the Arbitration Act, 1991 does not apply in respect of any proceeding to which subsection (2) applies unless, after the dispute arises, the consumer agrees to submit the dispute to arbitration. 2002, c. 30, Sched. A, s. 7 (5).

Class proceedings

8.  (1)  A consumer may commence a proceeding on behalf of members of a class under the Class Proceedings Act, 1992 or may become a member of a class in such a proceeding in respect of a dispute arising out of a consumer agreement despite any term or acknowledgment in the consumer agreement or a related agreement that purports to prevent or has the effect of preventing the consumer from commencing or becoming a member of a class proceeding. 2002, c. 30, Sched. A, s. 8 (1).

Procedure to resolve dispute

(2)  After a dispute that may result in a class proceeding arises, the consumer, the supplier and any other person involved in it may agree to resolve the dispute using any procedure that is available in law. 2002, c. 30, Sched. A, s. 8 (2).

Settlements or decisions

(3)  A settlement or decision that results from the procedure agreed to under subsection (2) is as binding on the parties as such a settlement or decision would be if it were reached in respect of a dispute concerning an agreement to which this Act does not apply. 2002, c. 30, Sched. A, s. 8 (3).

Note: On a day to be named by proclamation of the Lieutenant Governor, the French version of subsection (3) is amended by the Statutes of Ontario, 2008, chapter 9, subsection 79 (3) by striking out “que s’il résultait d’un différend” and substituting “que s’il avait été atteint à la suite d’un différend”. See: 2008, c. 9, ss. 79 (3), 81.

Non-application of Arbitration Act, 1991

(4)  Subsection 7 (1) of the Arbitration Act, 1991 does not apply in respect of any proceeding to which subsection (1) applies unless, after the dispute arises, the consumer agrees to submit the dispute to arbitration. 2002, c. 30, Sched. A, s. 8 (4).

Note: On a day to be named by proclamation of the Lieutenant Governor, the French version of subsection (4) is amended by the Statutes of Ontario, 2008, chapter 9, subsection 79 (4) by adding “, après la naissance du différend,” after “sauf si”. See: 2008, c. 9, ss. 79 (4), 81.

Quality of services

9.  (1)  The supplier is deemed to warrant that the services supplied under a consumer agreement are of a reasonably acceptable quality. 2002, c. 30, Sched. A, s. 9 (1).

Quality of goods

(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. 2002, c. 30, Sched. A, s. 9 (2).

Same

(3)  Any term or acknowledgement, whether part of the consumer agreement or not, that purports to negate or vary any implied condition or warranty under the Sale of Goods Act or any deemed condition or warranty under this Act is void. 2002, c. 30, Sched. A, s. 9 (3).

Same

(4)  If a term or acknowledgement referenced in subsection (3) is a term of the agreement, it is severable from the agreement and shall not be evidence of circumstances showing an intent that the deemed or implied warranty or condition does not apply. 2002, c. 30, Sched. A, s. 9 (4).

Estimates

10.  (1)  If a consumer agreement includes an estimate, the supplier shall not charge the consumer an amount that exceeds the estimate by more than 10 per cent. 2002, c. 30, Sched. A, s. 10 (1).

Performance of consumer agreement

(2)  If a supplier charges an amount that exceeds the estimate by more than 10 per cent, the consumer may require that the supplier provide the goods or services at the estimated price. 2002, c. 30, Sched. A, s. 10 (2).

Subsequent agreement

(3)  Nothing in this section prevents a consumer and a supplier from agreeing to amend the estimate or price in a consumer agreement, if the consumer requires additional or different goods or services. 2002, c. 30, Sched. A, s. 10 (3).

Ambiguities to benefit consumer

11.  Any ambiguity that allows for more than one reasonable interpretation of a consumer agreement provided by the supplier to the consumer or of any information that must be disclosed under this Act shall be interpreted to the benefit of the consumer. 2002, c. 30, Sched. A, s. 11.

Charging consumers for assistance

12.  No person shall charge a consumer for assisting the consumer to obtain any benefit, right or protection to which the consumer is entitled under this Act, unless, before the consumer agrees to pay the charge, the person discloses the entitlement’s existence and direct availability to the consumer and the cost, if any, the consumer would be required to pay for the entitlement if the consumer obtained the entitlement directly. 2002, c. 30, Sched. A, s. 12.

Unsolicited goods or services: relief from legal obligations

13.  (1)  Except as provided in this section, a recipient of unsolicited goods or services has no legal obligation in respect of their use or disposal. 2002, c. 30, Sched. A, s. 13 (1).

No payment for unsolicited goods or services

(2)  No supplier shall demand payment or make any representation that suggests that a consumer is required to make payment in respect of any unsolicited goods or services despite their use, receipt, misuse, loss, damage or theft. 2002, c. 30, Sched. A, s. 13 (2).

Request not inferred

(3)  A request for goods or services shall not be inferred solely on the basis of payment, inaction or the passing of time. 2002, c. 30, Sched. A, s. 13 (3).

Material change deemed unsolicited

(4)  If a consumer is receiving goods or services on an ongoing or periodic basis and there is a material change in such goods or services, the goods or services shall be deemed to be unsolicited from the time of the material change forward unless the supplier is able to establish that the consumer consented to the material change. 2002, c. 30, Sched. A, s. 13 (4).

Form of consent

(5)  A supplier may rely on a consumer’s consent to a material change that is made orally, in writing or by other affirmative action but the supplier shall bear the onus of proving the consumer’s consent. 2002, c. 30, Sched. A, s. 13 (5).

Demand

(6)  If a supplier has received a payment in respect of unsolicited goods or services, the consumer who made the payment may demand a refund of the payment in accordance with section 92 within one year after having made the payment. 2002, c. 30, Sched. A, s. 13 (6).

Refund

(7)  A supplier who receives a demand for a refund under subsection (6) shall refund the payment within the prescribed period of time. 2002, c. 30, Sched. A, s. 13 (7).

Consumer may commence action

(8)  The consumer who made the payment may commence an action to recover the payment in accordance with section 100. 2002, c. 30, Sched. A, s. 13 (8).

Definition

(9)  In this section,

“unsolicited goods or services” means,

(a) goods that are supplied to a consumer who did not request them but does not include,

(i) goods that the recipient knows or ought to know are intended for another person,

(ii) a change to periodically supplied goods, if the change in goods is not a material change, or

(iii) goods supplied under a written future performance agreement that provides for the periodic supply of goods to the recipient without further solicitation, or

(b) services that are supplied to a consumer who did not request them but does not include,

(i) services that were intended for another person from the time the recipient knew or ought to have known that they were so intended,

(ii) a change to ongoing or periodic services that are being supplied, if the change in the services is not a material change, or

(iii) services supplied under a written future performance agreement that provides for the ongoing or periodic supply of services to the recipient without further solicitation. 2002, c. 30, Sched. A, s. 13 (9).

Advertising illegal site

13.1  (1)  No person shall advertise an internet gaming site that is operated contrary to the Criminal Code (Canada). 2006, c. 34, s. 8 (2).

Facilitating

(2)  No person, other than an internet service provider, shall arrange for or otherwise facilitate advertising prohibited under subsection (1) on behalf of another person. 2006, c. 34, s. 8 (2).

Meaning of “advertise”

(3)  For the purpose of subsection (1), a person advertises an internet gaming site only if the advertising originates in Ontario or is primarily intended for Ontario residents. 2006, c. 34, s. 8 (2).

Same

(4)  For the purpose of subsection (1), “advertise” includes,

(a) providing, by print, publication, broadcast, telecommunication or distribution by any means, information for the purpose of promoting the use of an internet gaming site;

(b) providing a link in a website for the purpose of promoting the use of an internet gaming site, but does not include a link generated as the result of a search carried out by means of an internet search engine; and

(c) entering into a sponsorship relationship for the purpose of promoting the use of an internet gaming site. 2006, c. 34, s. 8 (2).

Application

(5)  This section applies despite subsection 2 (1). 2006, c. 34, s. 8 (2).

PART III
UNFAIR PRACTICES

False, misleading or deceptive representation

14.  (1)  It is an unfair practice for a person to make a false, misleading or deceptive representation. 2002, c. 30, Sched. A, s. 14 (1).

Examples of false, misleading or deceptive representations

(2)  Without limiting the generality of what constitutes a false, misleading or deceptive representation, the following are included as false, misleading or deceptive representations:

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. 2002, c. 30, Sched. A, s. 14 (2).

Unconscionable representation

15.  (1)  It is an unfair practice to make an unconscionable representation. 2002, c. 30, Sched. A, s. 15 (1).

Same

(2)  Without limiting the generality of what may be taken into account in determining whether a representation is unconscionable, there may be taken into account that the person making the representation or the person’s employer or principal knows or ought to know,

(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. 2002, c. 30, Sched. A, s. 15 (2).

Renegotiation of price

16.  It is an unfair practice for a person to use his, her or its custody or control of a consumer’s goods to pressure the consumer into renegotiating the terms of a consumer transaction. 2002, c. 30, Sched. A, s. 16.

Unfair practices prohibited

17.  (1)  No person shall engage in an unfair practice. 2002, c. 30, Sched. A, s. 17 (1).

One act deemed practice

(2)  A person who performs one act referred to in section 14, 15 or 16 shall be deemed to be engaging in an unfair practice. 2002, c. 30, Sched. A, s. 17 (2).

Advertising excepted

(3)  It is not an unfair practice for a person, on behalf of another person, to print, publish, distribute, broadcast or telecast a representation that the person accepted in good faith for printing, publishing, distributing, broadcasting or telecasting in the ordinary course of business. 2002, c. 30, Sched. A, s. 17 (3).

Rescinding agreement

18.  (1)  Any agreement, whether written, oral or implied, entered into by a consumer after or while a person has engaged in an unfair practice may be rescinded by the consumer and the consumer is entitled to any remedy that is available in law, including damages. 2002, c. 30, Sched. A, s. 18 (1).

Remedy if rescission not possible

(2)  A consumer is entitled to recover the amount by which the consumer’s payment under the agreement exceeds the value that the goods or services have to the consumer or to recover damages, or both, if rescission of the agreement under subsection (1) is not possible,

(a) because the return or restitution of the goods or services is no longer possible; or

(b) because rescission would deprive a third party of a right in the subject-matter of the agreement that the third party has acquired in good faith and for value. 2002, c. 30, Sched. A, s. 18 (2); 2004, c. 19, s. 7 (6).

Notice

(3)  A consumer must give notice within one year after entering into the agreement if,

(a) the consumer seeks to rescind an agreement under subsection (1); or

(b) the consumer seeks recovery under subsection (2), if rescission is not possible. 2002, c. 30, Sched. A, s. 18 (3).

Form of notice

(4)  The consumer may express notice in any way as long as it indicates the intention of the consumer to rescind the agreement or to seek recovery where rescission is not possible and the reasons for so doing and the notice meets any requirements that may be prescribed. 2002, c. 30, Sched. A, s. 18 (4).

Delivery of notice

(5)  Notice may be delivered by any means. 2002, c. 30, Sched. A, s. 18 (5).

When notice given

(6)  If notice is delivered other than by personal service, the notice shall be deemed to have been given when sent. 2002, c. 30, Sched. A, s. 18 (6).

Address

(7)  The consumer may send or deliver the notice to the person with whom the consumer contracted at the address set out in the agreement or, if the consumer did not receive a written copy of the agreement or the address of the person was not set out in the agreement, the consumer may send or deliver the notice,

(a) to any address of the person on record with the Government of Ontario or the Government of Canada; or

(b) to an address of the person known by the consumer. 2002, c. 30, Sched. A, s. 18 (7).

Commencement of an action

(8)  If a consumer has delivered notice and has not received a satisfactory response within the prescribed period, the consumer may commence an action. 2002, c. 30, Sched. A, s. 18 (8).

Same

(9)  If a consumer has a right to commence an action under this section, the consumer may commence the action in the Superior Court of Justice. 2002, c. 30, Sched. A, s. 18 (9).

Evidence

(10)  In the trial of an issue under this section, oral evidence respecting an unfair practice is admissible despite the existence of a written agreement and despite the fact that the evidence pertains to a representation in respect of a term, condition or undertaking that is or is not provided for in the agreement. 2002, c. 30, Sched. A, s. 18 (10).

Exemplary damages

(11)  A court may award exemplary or punitive damages in addition to any other remedy in an action commenced under this section. 2002, c. 30, Sched. A, s. 18 (11).

Liability

(12)  Each person who engaged in an unfair practice is liable jointly and severally with the person who entered into the agreement with the consumer for any amount to which the consumer is entitled under this section. 2002, c. 30, Sched. A, s. 18 (12).

Limited liability of assignee

(13)  If an agreement to which subsection (1) or (2) applies has been assigned or if any right to payment under such an agreement has been assigned, the liability of the person to whom it has been assigned is limited to the amount paid to that person by the consumer. 2002, c. 30, Sched. A, s. 18 (13).

Effect of rescission

(14)  When a consumer rescinds an agreement under subsection (1), such rescission operates to cancel, as if they never existed,

(a) the agreement;

(b) all related agreements;

(c) all guarantees given in respect of money payable under the agreement;

(d) all security given by the consumer or a guarantor in respect of money payable under the agreement; and

(e) all credit agreements, as defined in Part VII, and other payment instruments, including promissory notes,

(i) extended, arranged or facilitated by the person with whom the consumer reached the agreement, or

(ii) otherwise related to the agreement. 2002, c. 30, Sched. A, s. 18 (14).

Waiver of notice

(15)  If a consumer is required to give notice under this Part in order to obtain a remedy, a court may disregard the requirement to give the notice or any requirement relating to the notice if it is in the interest of justice to do so. 2002, c. 30, Sched. A, s. 18 (15).

Note: On a day to be named by proclamation of the Lieutenant Governor, the French version of subsection (15) is amended by the Statutes of Ontario, 2008, chapter 9, subsection 79 (5) by striking out “un recours” and substituting “réparation”. See: 2008, c. 9, ss. 79 (5), 81.

Transition

19.  (1)  This Part applies to consumer transactions that occur on or after the day this section is proclaimed in force. 2002, c. 30, Sched. A, s. 19 (1).

Same

(2)  The Business Practices Act, as it existed immediately before its repeal by the Consumer Protection Statute Law Amendment Act, 2002, continues to apply to consumer transactions that occurred before its repeal. 2002, c. 30, Sched. A, s. 19 (2).

PART IV
RIGHTS AND OBLIGATIONS RESPECTING SPECIFIC CONSUMER AGREEMENTS

Definitions and Application

Interpretation

20.  (1)  In this Part,

“direct agreement” means a consumer agreement that is negotiated or concluded in person at a place other than,

(a) at the supplier’s place of business, or

(b) at a market place, an auction, trade fair, agricultural fair or exhibition; (“convention directe”)

“internet agreement” means a consumer agreement formed by text-based internet communications; (“convention électronique”)

“membership fee” means the amount payable by a consumer for personal development services; (“droit d’adhésion”)

“personal development services” means,

(a) services provided for,

(i) health, fitness, diet or matters of a similar nature,

(ii) modelling and talent, including photo shoots relating to modelling and talent, or matters of a similar nature,

(iii) martial arts, sports, dance or similar activities, and

(iv) other matters as may be prescribed, and

(b) facilities provided for or instruction on the services referred to in clause (a) and any goods that are incidentally provided in addition to the provision of the services; (“services de perfectionnement personnel”)

“remote agreement” means a consumer agreement entered into when the consumer and supplier are not present together; (“convention à distance”)

“time share agreement” means a consumer agreement by which a consumer,

(a) acquires the right to use property as part of a plan that provides for the use of the property to circulate periodically among persons participating in the plan, whether or not the property is located in Ontario, or

(b) is provided with access to discounts or benefits for the future provision of transportation, accommodation or other goods or services related to travel. (“convention de multipropriété”) 2002, c. 30, Sched. A, s. 20 (1); 2006, c. 34, s. 8 (3).

Limitations on cancellation

(2)  Despite sections 95 and 96, in the prescribed circumstances, the effect of cancellation of a consumer agreement to which this Part applies by a consumer and the obligations arising as a result of the cancellation of the agreement may be subject to such limitations as may be prescribed. 2002, c. 30, Sched. A, s. 20 (2).

Future Performance Agreements

Application of sections

21.  (1)  Sections 22 to 26 apply to future performance agreements if the consumer’s total potential payment obligation under the agreement, excluding the cost of borrowing, exceeds a prescribed amount. 2002, c. 30, Sched. A, s. 21 (1).

Exception

(2)  Sections 22 to 26 do not apply to agreements that are future performance agreements solely because of an open credit arrangement. 2002, c. 30, Sched. A, s. 21 (2).

Transition

(3)  Sections 22 to 26 apply to future performance agreements entered into on or after the day this section is proclaimed in force. 2002, c. 30, Sched. A, s. 21 (3).

Same

(4)  The Consumer Protection Act, as it existed immediately before its repeal under the Consumer Protection Statute Law Amendment Act, 2002, continues to apply to executory contracts entered into before its repeal. 2002, c. 30, Sched. A, s. 21 (4).

Requirements for future performance agreements

22.  Every future performance agreement shall be in writing, shall be delivered to the consumer and shall be made in accordance with the prescribed requirements. 2002, c. 30, Sched. A, s. 22.

Cancelling future performance agreements

23.  A consumer may cancel a future performance agreement within one year after the date of entering into the agreement if the consumer does not receive a copy of the agreement that meets the requirements required by section 22. 2002, c. 30, Sched. A, s. 23.

Rights in other goods not enforceable

24.  Any provision in any future performance agreement or in any security agreement incidental to such an agreement under which the supplier may acquire title to, possession of or any rights in any goods of the consumer, other than the goods passing to the consumer under the agreement, is not enforceable. 2002, c. 30, Sched. A, s. 24.

No repossession after two-thirds paid except by leave of court

25.  (1)  Where a consumer under a future performance agreement has paid two-thirds or more of his or her payment obligation as fixed by the agreement, any provision in the agreement, or in any security agreement incidental to the agreement, under which the supplier may retake possession of or resell the goods or services upon default in payment by the consumer is not enforceable except by leave obtained from the Superior Court of Justice. 2002, c. 30, Sched. A, s. 25 (1).

Powers of court

(2)  Upon an application for leave under subsection (1), the court may, in its discretion, grant leave to the supplier or refuse leave or grant leave upon such terms and conditions as the court considers advisable. 2002, c. 30, Sched. A, s. 25 (2).

Late delivery

26.  (1)  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. 2002, c. 30, Sched. A, s. 26 (1).

Delivery or commencement date not specified

(2)  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. 2002, c. 30, Sched. A, s. 26 (2).

Forgiveness of failure

(3)  If, after the period in subsection (1) or (2) has expired, the consumer agrees to accept delivery or authorize commencement, the consumer may not cancel the agreement under this section. 2002, c. 30, Sched. A, s. 26 (3).

Deemed delivery or performance

(4)  For the purposes of subsections (1) and (2), a supplier is considered to have delivered or commenced performance under a future performance agreement if,

(a) delivery was attempted but was refused by the consumer at the time that delivery was attempted or delivery was attempted but not made because no person was available to accept delivery for the consumer on the day for which reasonable notice was given to the consumer that there was to be delivery; or

(b) commencement was attempted but was refused by the consumer at the time that commencement was attempted or commencement was attempted but did not occur because no person was available to enable commencement on the day for which reasonable notice was given to the consumer that commencement was to occur. 2002, c. 30, Sched. A, s. 26 (4).

Time Share Agreements

Requirements for time share agreements

27.  Every time share agreement shall be in writing, shall be delivered to the consumer and shall be made in accordance with the prescribed requirements. 2002, c. 30, Sched. A, s. 27.

Cancellation: cooling-off period

28.  (1)  A consumer may, without any reason, cancel a time share agreement at any time from the date of entering into the agreement until 10 days after receiving the written copy of the agreement. 2002, c. 30, Sched. A, s. 28 (1).

Cancellation: failure to meet requirements

(2)  In addition to the right under subsection (1), a consumer may cancel a time share agreement within one year after the date of entering into the agreement if the consumer does not receive a copy of the agreement that meets the requirements under section 27. 2002, c. 30, Sched. A, s. 28 (2).

Personal Development Services

Application

29.  (1)  Sections 30 to 36 apply in respect of personal development services or proposed personal development services for which,

(a) payment in advance is required; and

(b) the consumer’s total potential payment obligation, excluding cost of borrowing, exceeds a prescribed amount. 2002, c. 30, Sched. A, s. 29 (1).

Exceptions

(2)  Sections 30 to 36 do not apply to personal development services that are provided,

(a) on a non-profit or co-operative basis;

(b) by a private club primarily owned by its members;

(c) as an incidental part of the goods or services that are being supplied to the consumer;

(d) by a supplier funded or run by a charitable or municipal organization or by the Province of Ontario or any of its agencies; or

(e) by a golf club. 2002, c. 30, Sched. A, s. 29 (2).

Transition

(3)  Sections 30 to 36 do not apply to a personal development services agreement in existence before this section is proclaimed in force but do apply if a pre-existing agreement is extended or renewed after this section is proclaimed in force. 2002, c. 30, Sched. A, s. 29 (3).

Same

(4)  Agreements that are in existence before sections 30 to 36 are proclaimed in force are governed by the Prepaid Services Act as it existed immediately before its repeal by the Consumer Protection Statute Law Amendment Act, 2002. 2002, c. 30, Sched. A, s. 29 (4).

Requirements for personal development services agreements

30.  (1)  Every personal development services agreement shall be in writing, shall be delivered to the consumer and shall be made in accordance with the prescribed requirements. 2002, c. 30, Sched. A, s. 30 (1).

Payments not required or accepted

(2)  No supplier shall require or accept payment for personal development services from a consumer with whom the supplier does not have an agreement that meets the requirements established under subsection (1). 2002, c. 30, Sched. A, s. 30 (2).

Agreements for one year only

31.  (1)  No personal development services agreement may be made for a term longer than one year after the day that all the services are made available to the consumer. 2002, c. 30, Sched. A, s. 31 (1).

Deemed separate agreement

(2)  Any personal development services agreement that provides for a renewal or an extension of the agreement beyond one year shall be deemed to create a separate agreement for each renewal or extension of one year or less. 2002, c. 30, Sched. A, s. 31 (2).

Renewal provision

(3)  A personal development services agreement that provides for the renewal or extension of the agreement is not valid unless the supplier complies with the prescribed requirements. 2002, c. 30, Sched. A, s. 31 (3).

Deemed non-renewal of agreement

(4)  A personal development services agreement that provides for a renewal or extension of the agreement shall be deemed not to be renewed or extended if the consumer notifies the supplier, before the time for renewal or extension, that the consumer does not want to renew or extend. 2002, c. 30, Sched. A, s. 31 (4).

Monthly renewals

(5)  Subsections (2) and (3) do not apply to an agreement providing for successive monthly renewals if the consumer has the option of terminating on one month’s notice or less. 2002, c. 30, Sched. A, s. 31 (5).

Only one agreement

32.  (1)  No supplier shall enter into a new agreement for personal development services with a consumer with whom the supplier has an existing agreement for personal development services unless the new agreement is for personal development services that are distinctly different from the services provided under the existing agreement. 2002, c. 30, Sched. A, s. 32 (1).

New agreement void

(2)  Any new agreement entered into in contravention of subsection (1) is void. 2002, c. 30, Sched. A, s. 32 (2).

Same

(3)  For the purposes of subsection (1), a different term or a different commencement date does not constitute a distinct difference in the personal development services to be provided. 2002, c. 30, Sched. A, s. 32 (3).

Renewals exempted

(4)  Nothing in this section prevents a personal development services agreement from being renewed during the term of the agreement provided that the renewal meets the requirements under section 31. 2002, c. 30, Sched. A, s. 32 (4).

Initiation fee

33.  No supplier of personal development services shall,

(a) charge a consumer more than one initiation fee; or

(b) charge an initiation fee that is greater than twice the annual membership fee. 2002, c. 30, Sched. A, s. 33.

Instalment plans

34.  (1)  Every supplier of personal development services shall make available to consumers at least one plan for instalment payments of membership fees and initiation fees, if applicable, that allow consumers to make equal monthly payments over the term of the personal development services agreement. 2002, c. 30, Sched. A, s. 34 (1).

Same

(2)  No supplier shall provide an instalment payment plan through which the total amount paid by instalments exceeds the membership or initiation fee, if applicable, by more than 25 per cent. 2002, c. 30, Sched. A, s. 34 (2).

Cancellation: cooling-off period

35.  (1)  A consumer may, without any reason, cancel a personal development services agreement at any time within 10 days after the later of receiving the written copy of the agreement and the day all the services are available. 2002, c. 30, Sched. A, s. 35 (1).

Cancellation: failure to meet requirements

(2)  In addition to the right under subsection (1), a consumer may cancel a personal development services agreement within one year after the date of entering into the agreement if the consumer does not receive a copy of the agreement that meets the requirements under section 30. 2002, c. 30, Sched. A, s. 35 (2).

Trustee for payment for unavailable services

36.  (1)  No supplier shall receive payment from a consumer for personal development services that are not available at the time the payment is made except if the payment is made through a trust corporation registered under the Loan and Trust Corporations Act that has agreed to act as a trustee for the payment. 2002, c. 30, Sched. A, s. 36 (1).

Exception

(2)  Subsection (1) does not apply when one of the services that is not available is the use of a facility and the consumer has agreed in writing to use another facility provided by the supplier until the facility contracted for is available. 2002, c. 30, Sched. A, s. 36 (2).

Facility not available

(3)  If a facility is not available for use on the day specified in the agreement, the trustee shall refund all payment received from the consumer unless the consumer agrees in writing to permit the trustee to retain the payment. 2002, c. 30, Sched. A, s. 36 (3).

Extension

(4)  No permission given under subsection (3) applies for longer than 90 days but a subsequent permission may be given on the expiration of a permission. 2002, c. 30, Sched. A, s. 36 (4).

Duties of trustee

(5)  Where a supplier has a trustee under subsection (1),

(a) any notice to the trustee shall be deemed to be notice to the supplier; and

(b) any money payable by the supplier is payable by the trustee to the extent that the trustee holds sufficient trust funds for that purpose. 2002, c. 30, Sched. A, s. 36 (5).

Same

(6)  Every trustee under subsection (1) shall, upon receiving any payment from a consumer, provide the consumer with written confirmation of receipt of the payment and of the fact that the payment will be dealt with in accordance with sections 30 to 35 and with this section. 2002, c. 30, Sched. A, s. 36 (6).

Same

(7)  No trustee shall release to a supplier funds received from a consumer until the personal development services are available. 2002, c. 30, Sched. A, s. 36 (7).

Same

(8)  The trustee shall release the funds held under this section to the consumer if the consumer cancels the personal development services agreement in accordance with this Act. 2002, c. 30, Sched. A, s. 36 (8).

Internet Agreements

Application

37.  Sections 38 to 40 apply to an internet agreement if the consumer’s total potential payment obligation under the agreement, excluding the cost of borrowing, exceeds a prescribed amount. 2002, c. 30, Sched. A, s. 37.

Disclosure of information

38.  (1)  Before a consumer enters into an internet agreement, the supplier shall disclose the prescribed information to the consumer. 2002, c. 30, Sched. A, s. 38 (1).

Express opportunity to accept or decline agreement

(2)  The supplier shall provide the consumer with an express opportunity to accept or decline the agreement and to correct errors immediately before entering into it. 2002, c. 30, Sched. A, s. 38 (2).

Manner of disclosure

(3)  In addition to the requirements set out in section 5, disclosure under this section shall be accessible and shall be available in a manner that ensures that,

(a) the consumer has accessed the information; and

(b) the consumer is able to retain and print the information. 2002, c. 30, Sched. A, s. 38 (3).

Copy of internet agreement

39.