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Consumer Protection (Ontario) Law - General CPA Law
Chapter 2 - Exemptions from CPA Coverage
(01 July 2013)- Overview
- Fully CPA-Exempt Sectors
(a) Regulated Securities Transactions
(b) Investment and Income Securities Financial Services
(c) Regulated Financial Services and Products
(d) Regulated Commodity Futures Transactions
(e) Regulated Professions
(f) Residential Tenancies
(g) Utility Sector (Water, Electricity, Gas, etc)
(h) Professional Medical Services at Facilities
(i) Professional Medical Services at Independent Facilities
- Partially CPA-Exempt Sectors
(a) Accomodation
(b) Public Auctions
(c) Perishable Food
(d) Lottery Schemes
(e) Consumer Agreements Governed by the Motor Vehicles Dealers Act or the Motor Vehicle Dealers Act, 2002
(f) Consumer Agreements Governed by the Real Estate and Business Brokers Act or the Real Estate and Business Brokers Act, 2002
(g) Consumer Agreements Governed by the Travel Industry Act or the Travel Industry Act, 2002
(h) Consumer Agreements Governed by the Cemeteries Act (Revised), the Funeral Directors and Establishments Act or the Funeral, Burial and Cremation Services Act, 2002.
(i) Payday Loan Agreements
(j) Real Estate Purchase, Sale and Lease Transactions
(k) Exemption 'X' (Family Gifts?)
- Federally-Regulated Sectors
1. Overview
The issue of which economic sectors are governed - and how they are governed - by the Consumer Protection Act (CPA) is a complex one. The Consumer Protection Act is riddled with full and partial exemptions and exceptions to its general rules, and then adds unique sector-specific rules (and then sometimes partially excepts them as well). There are even rules on how to sort out which rules govern in the event of conflict with other rules! On top of that you can add federally-regulated sectors which are not CPA-governed by virtue of their being within federal constitution jurisdiction.
Below in s.2 below I list economic sectors that are fully CPA-exempt, in s.3 I list those economic sectors that are partially-CPA exempt, and in s.4 I list those sectors that are CPA-exempt due to their falling under federal jurisdiction. Many of the sectors found in these lists are considered in the sector-specific chapters with respect to their governing law - be it CPA, otherwise or a mix of both.
2. Fully CPA-Exempt Sectors
Those economic sectors which are fully-exempt from the CPA are listed and described here [CPA 2(2-5)]:
(a) Regulated Securities Transactions
"(C)onsumer transactions regulated under the Securities Act" are exempt from the CPA.
(b) Investment and Income Securities Financial Services
"(F)inancial services related to investment products or income securities" are exempt from the CPA.
(c) Regulated Financial Services and Products
"(F)inancial 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" are exempt from the CPA.
(d) Regulated Commodity Futures Transactions
"(C)onsumer transactions regulated under the Commodity Futures Act" are exempt from the CPA.
(e) Regulated Professions
Professional services that are "provided by a person governed by, or subject to, any of the following [Ontario] Acts" are exempt from the CPA [CPA 2(2)(e), CP Reg 1]: - The Architects Act.
- The Certified General Accountants Association of Ontario Act, 1983.
- The Chartered Accountants Act, 1956.
- The Drugless Practitioners Act.
- The Law Society Act.
- The Ontario College of Teachers Act, 1996.
- The Professional Engineers Act.
- The Professional Foresters Act, 2000.
- The Professional Geoscientists Act, 2000.
- The Public Accountancy Act.
- The Regulated Health Professions Act, 1991 and any Act named in Schedule 1 to the Regulated Health Professions Act, 1991 (RHPA).
Regulated Health Professional Act, Schedule 1
- The Social Work and Social Service Work Act, 1998.
- The Society of Management Accountants of Ontario Act, 1941.
- The Surveyors Act.
- The Veterinarians Act. (f) Residential Tenancies
"(C)onsumer transactions regulated under the Residential Tenancies Act, 2006" are exempt from the CPA. This sector is the subject of its own Isthatlegal.ca Legal Guide: Residential Landlord and Tenant (Ontario) Legal Guide.
(g) Utility Sector (Water, Electricity, Gas, etc)
Transactions for "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", are exempt from the CPA [CPA 2(3)]. "Public utility" means water, artificial or natural gas, electrical power or energy, steam or hot water [CPA 2(5)].
*** Consumer transactions with 'gas marketers' and 'retailers of electricity' who were covered by the CPA before 01 January 2011, as of that date moved under the jurisdiction of the Energy Consumer Protection Act. This Legal Guide does not yet encompass that legislation.
(h) Professional Medical Services at Facilities
Professional services provided at any of the following facilities are exempt from the CPA [CP Reg 2]: - an institution under the Mental Hospitals Act.
- a hospital under the Public Hospitals Act.
- a pharmacy under Part VI of the Drug and Pharmacies Regulation Act. (i) Professional Medical Services at Independent Facilities
Services provided at an independent health facility pursuant to a licence issued under the Independent Health Facilities Act are exempt from the CPA [CP Reg 3].
3. Partially CPA-Exempt Sectors
Note that this section could just as easily be titled "Partially CPA-Governed Sectors".
(a) Accomodation
The "supply of accomodation" (except time shares) is exempt from CPA rules governing the following topics [CP Reg 4]:- future performance agreements [see Ch.3, s.2 "Forms of Consumer Agreements: Future Performance Agreements"]
- internet agreements [see Ch.3, s.4: "Forms of Consumer Agreements: Internet Agreements"]
- remote agreements [see Ch.3, s.5: "Forms of Consumer Agreements: Remote Agreements"]
"Time shares" are covered in their own chapter of that name in Part B. Almost all time shares will be future performance agreements, but could also be remote or internet agreements.
Note as well that 'Residential Tenancies' are fully CPA-exempt as set out in s.2(f) above.
Otherwise, what is included within the term "accomodation" is unclear - however in the Residential Landlord and Tenant (Ontario) Legal Guide (at the link below) is a list of tenancy-like arrangements that are fully or partially exempt from the Residential Tenancies Act. It is quite likely that most or all of these are partially CPA-exempt as set out above, and as such - partially-governed by the CPA. I haven't seen a case on this yet.
Residential Landlord and Tenant (Ontario) Legal Guide: Ch.2: "Special and Exempt Premises"
(b) Public Auctions
The "supply by public auction of goods and services" (except time shares and personal development services) is exempt from CPA rules governing the following topics [CP Reg 5(1)]:- future performance agreements [see Ch.3, s.2 "Forms of Consumer Agreements: Future Performance Agreements"]
- direct agreements [see Ch.3, s.3: "Forms of Consumer Agreements: Direct Agreements"]
- internet agreements [see Ch.3, s.4: "Forms of Consumer Agreements: Internet Agreements"]
- remote agreements [see Ch.3, s.5: "Forms of Consumer Agreements: Remote Agreements"]
'Auctions', as the term is used here, applies to situations where the auctioneer is auctioning either their own goods and services or (the more traditional model) where goods (rarely services) are consigned for auction by third party owners - or some combination of them both [CP Reg 5(2)].
"Time shares" are covered in their own sector-specific chapter of that name. Almost all time shares are future performance agreements, and could conceivably also be remote or internet agreements.
"Personal Development Services" are covered in their own sector-specific chapter of that name. They are a loose range of body-related activities such as gym memberships, sports training, modelling and such-like. Almost all personal development services are future performance agreements, and could conceivably also be remote, direct or internet agreements.
(c) Perishable Food
The "supply of perishable food or a perishable food product ... if the food or food product is to be delivered to the consumer within 24 hours after it is ordered from the supplier" is exempt from CPA rules governing the following topics [CP Reg 7]:- future performance agreements [see Ch.3, s.2 "Forms of Consumer Agreements: Future Performance Agreements"]
- direct agreements [see Ch.3, s.3: "Forms of Consumer Agreements: Direct Agreements"]
- internet agreements [see Ch.3, s.4: "Forms of Consumer Agreements: Internet Agreements"]
- remote agreements [see Part C, Ch.3, s.5: "Forms of Consumer Agreements: Remote Agreements"].
(d) Lottery Schemes
The "supply of a lottery ticket or a good or service in the nature of a lottery ticket ... if the supplier is a charitable or religious organization licensed under the authority of paragraph 207 (1) (b) of the Criminal Code (Canada) to conduct or manage the lottery scheme and the proceeds from the lottery scheme are to be used for a charitable or religious object or purpose" is exempt from CPA rules governing the following topics [CP Reg 8]:- future performance agreements [see Ch.3, s.2 "Forms of Consumer Agreements: Future Performance Agreements"]
- direct agreements [see Ch.3, s.3: "Forms of Consumer Agreements: Direct Agreements"]
- remote agreements [see Ch.3, s.5: "Forms of Consumer Agreements: Remote Agreements"]
(e) Consumer Agreements Governed by the Motor Vehicles Dealers Act or the Motor Vehicle Dealers Act, 2002
The "supply of goods or services pursuant to an agreement that is subject to ... the Motor Vehicles Dealers Act or the Motor Vehicle Dealers Act, 2002" is exempt from CPA rules governing the following topics [CP Reg 9(1)1, (2)]:- content and disclosure requirements for future performance agreements [see Ch.3, s.2(b) "Forms of Consumer Agreements: Future Performance Agreements: Content and Disclosure Requirements for Future Performance Agreements"]
- consumer cancellation rights on non-delivery of consumer agreement [see Ch.3, s.2(c) "Forms of Consumer Agreements: Future Performance Agreements: Consumer Cancellation Right on Supplier Default re Consumer Agreement Delivery"]
- consumer cancellation rights on late performance [see Ch.3, s.2(d) "Forms of Consumer Agreements: Future Performance Agreements: Consumer Cancellation Right Where Late Performance; Exceptions"]
- internet agreements [see Ch.3, s.4: "Forms of Consumer Agreements: Internet Agreements"]
- direct agreements [see Ch.3, s.3: "Forms of Consumer Agreements: Direct Agreements"]
- remote agreements [see Ch.3, s.5: "Forms of Consumer Agreements: Remote Agreements"]
There is an Isthatlegal.ca Motor Vehicle Dealing (Ontario) Legal Guide.
(f) Consumer Agreements Governed by the Real Estate and Business Brokers Act or the Real Estate and Business Brokers Act, 2002
The "supply of goods or services pursuant to an agreement that is subject to ... the Real Estate and Business Brokers Act or the Real Estate and Business Brokers Act, 2002" is exempt from CPA rules governing the following topics [CP Reg 9(1)2, (2)]:- content and disclosure requirements for future performance agreements [see Ch.3, s.2(b) "Forms of Consumer Agreements: Future Performance Agreements: Content and Disclosure Requirements for Future Performance Agreements"]
- consumer cancellation rights on non-delivery of consumer agreement [see Ch.3, s.2(c) "Forms of Consumer Agreements: Future Performance Agreements: Consumer Cancellation Right on Supplier Default re Consumer Agreement Delivery"]
- consumer cancellation rights on late performance [see Ch.3, s.2(d) "Forms of Consumer Agreements: Future Performance Agreements: Consumer Cancellation Right Where Late Performance; Exceptions"]
- internet agreements [see Ch.3, s.4: "Forms of Consumer Agreements: Internet Agreements"]
- direct agreements [see Ch.3, s.3: "Forms of Consumer Agreements: Direct Agreements"]
- remote agreements [see Ch.3, s.5: "Forms of Consumer Agreements: Remote Agreements"]
(g) Consumer Agreements Governed by the Travel Industry Act or the Travel Industry Act, 2002
The "supply of goods or services pursuant to an agreement that is subject to ... the Travel Industry Act or the Travel Industry Act, 2002" is exempt from CPA rules governing the following topics [CP Reg 9(1)3, (2)]:- content and disclosure requirements for future performance agreements [see Ch.3, s.2(b) "Forms of Consumer Agreements: Future Performance Agreements: Content and Disclosure Requirements for Future Performance Agreements"]
- consumer cancellation rights on non-delivery of consumer agreement [see Ch.3, s.2(c) "Forms of Consumer Agreements: Future Performance Agreements: Consumer Cancellation Right on Supplier Default re Consumer Agreement Delivery"]
- consumer cancellation rights on late performance [see Ch.3, s.2(d) "Forms of Consumer Agreements: Future Performance Agreements: Consumer Cancellation Right Where Late Performance; Exceptions"]
- internet agreements [see Ch.3, s.4: "Forms of Consumer Agreements: Internet Agreements"]
- direct agreements [see Ch.3, s.3: "Forms of Consumer Agreements: Direct Agreements"]
- remote agreements [see Ch.3, s.5: "Forms of Consumer Agreements: Remote Agreements"]
(h) Consumer Agreements Governed by the Cemeteries Act (Revised), the Funeral Directors and Establishments Act or the Funeral, Burial and Cremation Services Act, 2002
The "supply of goods or services pursuant to an agreement that is subject to ... the Cemeteries Act (Revised), the Funeral Directors and Establishments Act or the Funeral, Burial and Cremation Services Act, 2002" is exempt from CPA rules governing the following topics [CP Reg 9(1)4, (2)]:- content and disclosure requirements for future performance agreements [see Ch.3, s.2(b) "Forms of Consumer Agreements: Future Performance Agreements: Content and Disclosure Requirements for Future Performance Agreements"]
- consumer cancellation rights on non-delivery of consumer agreement [see Ch.3, s.2(c) "Forms of Consumer Agreements: Future Performance Agreements: Consumer Cancellation Right on Supplier Default re Consumer Agreement Delivery"]
- consumer cancellation rights on late performance [see Ch.3, s.2(d) "Forms of Consumer Agreements: Future Performance Agreements: Consumer Cancellation Right Where Late Performance; Exceptions"]
- internet agreements [see Ch.3, s.4: "Forms of Consumer Agreements: Internet Agreements"]
- direct agreements [see Ch.3, s.3: "Forms of Consumer Agreements: Direct Agreements"]
- remote agreements [see Ch.3, s.5: "Forms of Consumer Agreements: Remote Agreements"]
*** (i) Payday Loan Agreements
The key definitions for "payday loans" are: Payday Loans Act 1(1) "payday loan" means an advancement of money in exchange for a post-dated cheque, a pre-authorized debit or a future payment of a similar nature but not for any guarantee, suretyship, overdarft protection or security on property and not through a margin loan, pawnbroking, a line of credit or a credit card;
"payday loan agreement" means an agreement under which a lender makes a payday loan to a borrower; "Payday loan agreements" as are exempt from CPA rules governing the following topics [CP Reg 9(3)]:- future performance agreements [see Ch.3, s.2 "Forms of Consumer Agreements: Future Performance Agreements"]
- direct agreements [see Ch.3, s.3: "Forms of Consumer Agreements: Direct Agreements"]
- internet agreements [see Ch.3, s.4: "Forms of Consumer Agreements: Internet Agreements"]
- remote agreements [see Ch.3, s.5: "Forms of Consumer Agreements: Remote Agreements"]
- personal development services agreements [see the sector-specific chapter of that name]
- time share agreements [see the sector-specific chapter of that name].
(j) Real Estate Purchase, Sale and Lease Transactions
With the below exceptions, "consumer transactions for the purchase, sale or lease of real property" are exempt from the CPA [CPA 2(2)(f)]:- 'time share' arrangements are governed by the CPA [see the sector-specific chapter by that name];
- real estate transactions are governed by the 'false advertising' Stop Order provisions [CPA 109(2)] [see Ch.8, s.8: "Administrative Enforcement: False Advertising Stop Order"].
*** (k) Exemption 'X'
I call this "Exemption X" because I really don't understand it. If anyone thinks they do I welcome their input.
The CPA exempts "the supply of goods and services" from several CPA rules (listed below) where [CP Reg 6(1,2)]:- they are supplied "to one person at the request of another",
- "the person requesting the supply of the goods or services pays the price in full at the time of the request", and
- this is done "on a single occasion and not on an ongoing basis".
At first impression I thought this was addressed at one-time 'brokers', those who act as independent intermediaries between buyers and sellers. However that interpretation was defeated (at least in my mind) by the primary CPA definitions that the CPA only addresses buyer transactions when they are for consumer purposes [CPA 1: "consumer", 2(1)] - which a professional broker purchase would not be.
In my mind that left only 'gifts', and even then only family gifts, as the definition of "consumer" requires that the purchaser be acting for "personal, family or household purposes". But that doesn't fit either as why would such an exemption be 'one-time' only.
However this exemption does apply, the supply of goods and services falling under 'Exemption X' is exempt from CPA rules governing the following topics [CP Reg 6(1,2)]:- content and disclosure requirements for future performance agreements [see Ch.3, s.2(b) "Forms of Consumer Agreements: Future Performance Agreements: Content and Disclosure Requirements for Future Performance Agreements"]
- consumer cancellation rights on non-delivery of consumer agreement [see Ch.3, s.2(c) "Forms of Consumer Agreements: Future Performance Agreements: Consumer Cancellation Right on Supplier Default re Consumer Agreement Delivery"]
- consumer cancellation rights on late performance [see Ch.3, s.2(d) "Forms of Consumer Agreements: Future Performance Agreements: Consumer Cancellation Right Where Late Performance; Exceptions"]
- internet agreements [see Ch.3, s.4: "Forms of Consumer Agreements: Internet Agreements"]
- remote agreements [see Ch.3, s.5: "Forms of Consumer Agreements: Remote Agreements"]
I also considered that these exemptions are largely the same as those set out for transactions which are 'otherwise governed' by other statutes, to see if that shed any light in it's nature - but came up blank there as well.
Then I considered that maybe, because these are third party transactions, the provision just means that the exempted CPA duties are not owed to the gift recipient, but rather to the purchaser - but that doesn't seem to fly either as under the exemption [CP Reg 6] it is the "supply of goods and services" that are exempt from the listed provisions, which avoids the supplier's duties to either the gifter or the giftee.
In short, I don't know what this exemption is about. If anyone has any insight into this can you let me know?: simonshields@isthatlegal.ca.
4. Federally-Regulated Sectors
While not expressly excluded (or even mentioned) in the text of the CPA, there are a number of important consumer sectors that fall under federal jurisdiction by virtue of s.91 of the Canadian Constitution. Some of these are listed here:- air travel (travel packages and agencies are provincial)
- railways
- shipping
- telecommunications
- banks
- postal service
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