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Consumer - Inequitable Exception [CPA 93(2)]. Manafa v. Tannous
In Manafa v. Tannous (Div Court, 2023) the Divisional Court considers a Consumer Protection Act (CPA) provision requiring written contracts [CPA 22 re future performance contracts], which it avoids by the general 'inequitable' exception of CPA 93(2):[62] There is one argument that requires further consideration. The Appellant seeks to have the amount owing set aside on the basis that the agreement was not in writing and, therefore, contrary to section 22 of the CPA. That section requires future performance agreements to be in writing.
[63] The Deputy Judge specifically turned his mind to this issue and indicated that the parties had a specific oral contract there “there wouldn’t be invoices, there wouldn’t be HST charged. As a result, the Deputy Judge determined that the Appellant could not take advantage of the CPA
[64] In my view, this conclusion was correct. Section 93 of the CPA states:Consumer agreements not binding
93(1) A consumer agreement is not binding on the consumer unless the agreement is made in accordance with this Act and the regulations. 2002, c. 30, Sched. A, s. 93.
Court may order consumer bound
(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. 2004, c. 19, s. 7 (36). [65] The Deputy Judge did not misapply this section. He concluded that the parties had an oral agreement in part because the Appellant did not want to pay HST on the amounts that she was being charged. As a result, the Deputy Judge concluded that the Appellant should not be permitted to rely on the CPA to void the agreement when she herself wanted an oral agreement. That conclusion was open to the Deputy Judge on the evidence on the record before him, and I see no reason to interfere with it.
[66] For the foregoing reasons, the Appellant’s arguments on the CPA are dismissed.
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