|
Consumer Protection (Ontario) Law - General CPA Law
Chapter 3 - Forms of Consumer Agreements
(01 July 2013)- Overview
- Future Performance Agreements
(a) Application of CPA Rules to Future Performance Agreements
. The Definition
. Exception to CPA Coverage Where Low Transaction Value
. Exception to CPA Coverage Where "Open Credit Arrangement"
. Exception Where Consumer Agreement Pre-dates 30 July 2005
(b) Express Formation of Consumer Agreement
(c) Content and Disclosure Requirements for Future Performance Agreements
(d) Consumer Cancellation Right on Supplier Default re Consumer Agreement Delivery
(e) Consumer Cancellation Right Where Late Performance;
Exceptions
. Where Fixed Date for Delivery or Performance
. Where Consumer Agreement Silent Re Date for Performance or Delivery
. Waiver by Actual Acceptance
. Exemption for Gift Cards
(f) Where Security Interest Not Enforceable
. Overview
. Not Enforceable Against Collateral Property
. Not Enforceable Where 2/3 of Payment Made; Exception
(g) Remedial Variations
(h) Sectors Exempted from Future Performance Agreement Rules
- Direct Agreements
(a) CPA Coverage of Direct Agreements
(b) Content and Disclosure Requirements of Direct Agreements
(c) Consumer Cancellation Right on Supplier Default in Delivery of Consumer Agreement
(d) Early Consumer Cancellation
(e) Remedial Variations
(f) Sectors Exempted from Direct Agreement Rules
- Internet Agreements
(a) CPA Coverage of Internet Agreements
(b) Contents and Disclosure Requirements for Internet Agreements Before Execution
(c) Execution Must be Express
(d) Additional Disclosure and Copy Delivery Requirements for Internet Agreements After Execution
(e) Consumer Cancellation Right Where Supplier in Default of Disclosure or Execution Duties
(f) Consumer Cancellation Right Where Non-Delivery of Consumer Agreement
(g) Remedial Variations
(h) Sectors Exempted from Internet Agreement Rules
- Remote Agreements
(a) CPA Coverage of Remote Agreements
(b) Contents and Disclosure Requirements for Remote Agreements Before Execution
(c) Execution Must be Express
(d) Additional Disclosure and Copy Delivery Requirements for Remote Agreements After Execution
(e) Consumer Cancellation Right Where Supplier in Default of Disclosure Duties
(f) Consumer Cancellation Right Where Non-Delivery of Consumer Agreement
(g) Remedial Variations
(h) Sectors Exempted from Remote Agreement Rules
- Amendment, Renewal and Extension Regardless of Related Consumer Agreement Terms
(a) Overview
(b) Amendment, Renewal or Extension Requirements
(c) Effective Date
(d) Early Consumer Cancellation Rights For Renewed Direct Agreements
(e) Original 'Form' of Consumer Agreement Preserved
- Amendment, Renewal and Extension in Where Specific Consumer Agreement Terms (Not Applicable to Direct Agreements)
(a) Overview
(b) Qualifying Conditions
(c) Proposal Content and Disclosure Requirements
(d) Effective Date
(e) Original 'Form' of Consumer Agreement Preserved
1. Overview
The four 'forms' of consumer agreements are explained in this chapter. They are: future performance agreements, direct agreements, internet agreements and remote agreements.
One of the most confusing parts of using the Consumer Protection Act (CPA) is determining the rules that apply to your situation. Contrary to expectation, this is is not just a simple matter of looking up the economic sector that you are involved with (eg. motor vehicle repair, chattel lease, etc) and then seeing which rules apply to it. While those sector-specific categories exist the CPA overlays them with another set of categories that are determined by the 'form' of the consumer agreement (contract), or by the manner in which it was formed. Each of those 'forms' has their own set of rules which may or may nor conflict, in whole or in part, with the sector-specific rules. In fact, sometimes one fact situation can fall into two or more 'form' categories that can conflict with each other!
Rules for resolving conflicts between different rule sets are explained in Ch.4: "Rule Conflict Resolution".
*** [dupes with same in Ch.1]
Anyone considering using the CPA should first carefully sort out which of its rules apply to their situation. The steps to do that are explained at this link:
Identifying Which CPA Rules Apply to Your Situation
2. Future Performance Agreements
(a) Application of CPA Rules to Future Performance Agreements
. The Definition
A "future performance agreement" (FPA) [CPA s.1] is defined as: CPA s.1 "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; In contract law, the legal 'consideration' required to form a contract (ie. the exchange of value such as goods, services or money), can be satisfied by a promise of future payment (or performance) as much as by direct and immediate payment. It is such arrangements, sometimes called 'executory contracts' (and which are quite common), that this definition is broadly meant to capture (the prior CPA used the term "executory contracts" with the same meaning).
The concept of a future performance agreement would of course exclude an immediate (eg. over-the-counter) transaction for goods paid in cash at the time they are taken (eg. buying a loaf of bread, or a set of tools).
. Exception to CPA Coverage Where Low Transaction Value
Even if a consumer agreement is a 'future performance agreement', it is not covered by the provisions set out in this section if the consumer's "total potential payment obligation under the agreement, excluding the cost of borrowing", is equal to or less than $50 [CPA 21(1); Reg 23.1].
This minimum threshold does not apply to future performance agreements that are also 'gift card agreements' (see the sector-specific chapter of that name), such that low-value gift-card agreements are subject to all the future performance rules set out in this section [CP Reg 23.1].
. Exception to CPA Coverage Where "Open Credit Arrangement"
Similarly, where the consumer agreement is a "future performance agreement" solely because it also meets the definition of "open credit arrangement", these CPA future performance rules do not apply to it [CPA 21(2)].
'Open credit' agreements are discussed in the sector-specific chapter entitled "Loans and Credit Regulation under the CPA". 'Open credit' refers to an ongoing loan arrangement where the amount of loan taken is at the will of the borrower, subject to limits. Typical examples of 'open credit' are credit cards and lines-of-credit at a financial institution.
However, if there is any other 'future performance' aspect of the open credit consumer agreement this exception will not apply, and the whole consumer agreement will be subject to the rules set out in this section.
. Exception Where Consumer Agreement Pre-dates 30 July 2005
Note that the CPA does not apply to future performance agreements entered into before the current CPA came into force (30 July 2005) [CPA 21(3)]. Such old agreements (called 'executory contracts' under the previous legislation), are still governed by the prior CPA [CPA 21(4)].
(b) Express Formation of Consumer Agreement
In order to prevent 'agreement creep' being pressed on non-assertive consumers (ie. where a verbal sales pitch is led seemlessly into a conversation premised on a 'done deal'), suppliers offering future performance agreements "shall provide the consumer with an express opportunity to accept or decline the agreement and to correct errors immediately before entering into it" [CP Reg 24].
If this is done (commonly it won't be), this may take the form of a final summarizing statement such as: 'So do we have a deal?' - that's your chance to say no.
(c) Content and Disclosure Requirements for Future Performance Agreements
"Future Performance Agreements" must be in writing, delivered to the consumer and contain the below-listed disclosure information [CPA 22; CP Reg 24]:- Consumer Name
- Supplier Name
If a person, partnership or corporation their correct legal name, and as well any business names used.
- Contact Information of Supplier
The telephone number and business address of the supplier, and information respecting other ways, if any, in which the supplier can be contacted by the consumer, such as the fax number and e-mail address of the supplier.
- Description of Goods and Services
A fair and accurate description of the goods and services to be supplied, including of any technical requirements related to their use.
- Costs and Charges List
An itemized list of the prices to be charged the consumer for the goods and services, including taxes and shipping charges.
- Extra Charges
A 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 Charges
The total amount that the supplier knows is payable by the consumer under the agreement, including 'extra charges' (above) or, if the goods and services are to be supplied during an indefinite period, the amount and frequency of periodic payments.
- Terms and Methods of Payment
- Dates of Performance
The date or dates on which delivery, commencement of performance, ongoing performance and completion of performance are to occur, as applicable.
- Delivery Details
For goods and services that are to be delivered,
- the place to which they are to be delivered, and
- if the supplier holds out a specific manner of delivery and will charge the consumer for delivery, the manner in which the goods and services are to be delivered, including the name of the carrier, if any, and including the method of transportation to be used.
- Service Performance Details
For services that are to be performed, the place where they are to be performed, the person for whom they are to be performed, the supplier's method of performing them and - if the supplier holds out that a specific person other than the supplier will perform any of the services on the supplier's behalf - the name of that person.
- Extra-CPA Consumer Rights and Supplier Obligations Regarding Cancellation, Returns, Exchanges and Refunds
The rights, if any, that the supplier agrees the consumer will have in addition to the rights under the Act and the obligations, if any, by which the supplier agrees to be bound in addition to the obligations under the Act, in relation to cancellations, returns, exchanges and refunds.
- Trade-In Details
If the agreement includes a trade-in arrangement, a description of the trade-in arrangement and the amount of the trade-in allowance.
- Currency of Transaction
The currency in which amounts are expressed, if not Canadian.
- Other Supplier-Imposed Restrictions, Limitations and Conditions
- Date of Execution of Consumer Agreement
These disclosure duties do not apply to 'gift card agreements' (which are typically also future performance agreements). See the chapter "Gift Cards" in Part B for disclosure requirements respecting gift cards [s.4: "Content and Disclosure of Gift Card Agreements"].
General requirements for disclosure are explained at this link:
General Disclosure Requirements
(d) Consumer Cancellation Right on Supplier Default re Consumer Agreement Delivery
'Future performance agreements' to which the CPA applies may be cancelled by the consumer "within one year after the date of entering into the agreement" if the consumer does not receive a copy of the agreement that complies with (c) above [CPA 23].
(e) Consumer Cancellation Right Where Late Performance; Exceptions
. Where Fixed Date for Delivery or Performance
Where a future performance agreement (or an amended agreement in writing, in which case default counts from any new delivery of performance date) does set a specific date for delivery of goods or performance of services, and the supplier is more than 30 days in default of such delivery or performance (and is still in default), then the consumer may cancel the consumer agreement [CPA 26(1)].
Cancellation notice procedures are discussed in Ch.7, s.7: "CPA Civil Remedies: Consumer-Issued Notice Procedures".
In order to avoid a consumer engaging in bad faith efforts to cancel the contract, 'delivery' or 'commencement of performance' for these purposes includes where [CPA 26(4)]:- such was attempted and refused, or
- such was attempted but frustrated by the absence of a person who, after reasonable notice was given by the supplier, could accept delivery or enable the commencment of performance.
. Where Consumer Agreement Silent Re Date for Performance or Delivery
Where a future performance agreement does not set a specific date for delivery of goods or performance of services, and the supplier has not delivered the goods or commenced performance of the services within 30 days of the date the consumer agreement is entered into (and is still in default), then the consumer may cancel the consumer agreement [CPA s.26(2)].
Cancellation notice procedures are discussed in Ch.7, s.7: "CPA Civil Remedies: Consumer-Issued Notice Procedures".
In order to avoid a consumer engaging in bad faith efforts to cancel the contract, 'delivery' or 'commencement of performance', for these purposes, includes where [CPA 26(4)]:- such was attempted and refused, or
- such was attempted but frustrated by the absence of a person who, after reasonable notice was given by the supplier, could accept delivery or enable the commencment of performance.
. Waiver by Actual Acceptance
However this cancellation right is waived where the consumer has otherwise consented (even if not in writing) to actual delivery of the goods or actual commencement of performance in the meantime [CPA s.26(3)]. That is, the act of accepting late delivery (of goods) or authorizing late commencement of performance (of services), waives the cancellation rights above.
Given that refusal to allow delivery or performance can be deemed to constitute acceptance (as per the above two clauses), a consumer wishing to cancel an agreement due to lateness should act promptly once they are in a position to do so. Cancellation notice procedures are discussed in Ch.7, s.7: "CPA Civil Remedies: Consumer-Issued Notice Procedures".
. Exemption for Gift Cards
As the time of consumption of goods of services under a gift certificate is at the will of the holder, they are exempt from this lateness rule [CP Reg 25.2]. Gift cards are the subject of their own sector-specific chapter of that name.
(f) Where Security Interest Not Enforceable
. Overview
It is common for a consumer's future performance under a future performance agreement (ie. money owing) to be secured by a chattel (and occasionally a real estate) mortgage of some kind (ie. a security interest to take possession and/or title of a consumer's property on default in payment). Such security arrangements can be part of the primary consumer agreement, or part of related financing arrangements with the supplier or with third party finance companies.
. Not Enforceable Against Collateral Property
The CPA provides that such arrangements are valid only insofar as they bind the property which is being purchased under the consumer agreement. Any purported attempt to bind other property [such as the common 'General Security Agreement' (GSA)] attempts to do is unenforceable [CPA s.24].
. Not Enforceable Where 2/3 of Payment Made; Exception
As well, where a consumer has already paid 2/3 or more of their payments due under a future performance agreement, any security interest against the property of the consumer (even if it relates to the property being purchased) is unenforceable - except with leave (permission) of the Superior Court [CPA s.25(1)]. The court may grant such leave with (or without) "such terms and conditions as the court considers advisable", or refuse it entirely [CPA s.25(2)].
(g) Remedial Variations
For the most part, future performance agreements are governed by the same general remedial provisions that govern most consumer agreements, which are discussed in Ch.7, "CPA Civil Remedies".
However, in the key area of consumer's restitution duties after they have cancelled or rescinded a consumer agreement, there may be variation. Anyone dealing with a future performance agreement and having to consider that issue should carefully review the following discussions in the Ch.7 (cited above): s.6(c): "Restitution by Consumer After Rescission: Special Rules: Additional Consumer's Restitution Duties for Specific Consumer Agreements [Reg 81]", and
s.6(e): "Gift Card Agreemente Exempt from Recovery and Return of Goods Duties". (h) Sectors Exempted from Future Performance Agreement Rules
The following economic sectors, all of which have their own sector-specific chapters or law, are exempt from all future performance agreement rules:- Accomodation [CP Reg 4]
- Public Auctions [CP Reg 5(1)]
- Perishable Food [CP Reg 7]
- Lottery Schemes [CP Reg 8]
- Payday Loans [CP Reg 9(3)]
The following sectors are exempt from the content and disclosure requirements for future performance agreements set out in (c) above [s.2(b)]:- Motor Vehicle Dealer Sales [CP Reg 9(1)1,(2)]
- Real Estate and Business Brokers Sales [CP Reg 9(1)2,(2)]
- Travel Industry Sales [CP Reg 9(1)3,(2)]
- Cemetaries, Funeral and Related Sales [CP Reg 9(1)4,(2)]
- *** Category "X" [CP Reg 8(1,2)]
The following sectors are exempt from the consumer cancellation rights on non-delivery of consumer agreement set out in (d) above [s.2(c)]:- Motor Vehicle Dealer Sales [CP Reg 9(1)1,(2)]
- Real Estate and Business Brokers Sales [CP Reg 9(1)2,(2)]
- Travel Industry Sales [CP Reg 9(1)3,(2)]
- Cemetaries, Funeral and Related Sales [CP Reg 9(1)4,(2)]
- *** Category "X" [CP Reg 8(1,2)]
The following sectors are exempt from the consumer cancellation rights on late performance set out in (e) above [s.2(d)]:- Motor Vehicle Dealer Sales [CP Reg 9(1)1,(2)]
- Real Estate and Business Brokers Sales [CP Reg 9(1)2,(2)]
- Travel Industry Sales [CP Reg 9(1)3,(2)]
- Cemetaries, Funeral and Related Sales [CP Reg 9(1)4,(2)]
- *** Category "X" [CP Reg 8(1,2)]
3. Direct Agreements
(a) CPA Coverage of Direct Agreements
Under the CPA, a "direct agreement" is a consumer agreement negotiated at a place other than the supplier's place of business, and other than at a "market place, an auction, trade fair, agricultural fair or exhibition" [CPA s.20(1)]. As such it is a huge class, cutting across many economic sectors.
The term 'direct' refers to the fact that it is usually the supplier coming 'directly' to (and sometimes 'at') the prospective consumer. The definition is aimed at capturing sales techniques such as door-to-door sales - a technique often associated with shady practices - as well as home services such as building contractors and renovators, another problem area.
Note however, that even if a consumer agreement is a 'direct agreement', it is still not be covered by the 'direct agreement' rules set out in this section if the consumer's "total potential payment obligation under the agreement, excluding the cost of borrowing", is equal to or less than $50 [CPA 41(1); CP Reg 34].
(b) Content and Disclosure Requirements of Direct Agreements
"Direct Agreements" must be in writing, signed by the parties, delivered to the consumer and contain the below-listed disclosure information [CPA 42; CP Reg 35(1)]:- Consumer Name
- Supplier Name
If a person, partnership or corporation their correct name, and as well any business names used.
- Contact Information of Supplier
The telephone number and business address of the supplier, and information respecting other ways, if any, in which the supplier can be contacted by the consumer, such as their fax number and e-mail address.
- Agent Names
The names of persons, if any, who solicited and negotiated the direct agreement, and who concluded it with the consumer.
- Date and Place of Agreement Execution
The date on which and the place where the agreement is entered into.
- Description of Goods and Services
A fair and accurate description of the goods and services to be supplied, including of any technical requirements related to their use.
- Total Amount Payable
The total amount payable by the consumer under the agreement or, if the goods and services are to be supplied during an indefinite period, the amount and frequency of periodic payments.
- Terms of Payment
- Costs and Charges List
An itemized list of the prices to be charged to the consumer for the goods and services, including taxes and shipping charges.
- Trade-In Details
If the agreement includes a trade-in arrangement, a description of the trade-in arrangement and the amount of the trade-in allowance.
- Dates of Performance
The date or dates on which delivery, commencement of performance, ongoing performance and completion of performance are to occur, as applicable.
- Extra-CPA Consumer Rights and Supplier Obligations Regarding Cancellation, Returns, Exchanges and Refunds
The rights, if any, that the supplier agrees the consumer will have in addition to the rights under the Act and the obligations, if any, by which the supplier agrees to be bound in addition to the obligations under the Act, in relation to cancellations, returns, exchanges and refunds.
- Currency
The currency in which amounts are expressed, if not Canadian.
- Other Supplier-Imposed Restrictions, Limitations and Conditions
- Consumer Information Statement (I)
The following statement [CP Reg 35(2)]:
- "which shall be in at least 10 point type, except for the heading which shall be in at least 12 point bold type', and
- "which shall appear on the first page of the agreement, unless there is a notice on the first page of the agreement in at least 12 point bold type indicating where in the agreement the statement appears.":
Your Rights under the Consumer Protection Act, 2002
You may cancel this agreement at any time during the period that ends ten (10) days after the day you receive a written copy of the agreement. You do not need to give the supplier a reason for cancelling during this 10-day period.
If the supplier does not make delivery within 30 days after the delivery date specified in this agreement or if the supplier does not begin performance of his, her or its obligations within 30 days after the commencement date specified in this agreement, you may cancel this agreement at any time before delivery or commencement of performance. You lose the right to cancel if, after the 30-day period has expired, you agree to accept delivery or authorize commencement of performance.
If the delivery date or commencement date is not specified in this agreement and the supplier does not deliver or commence performance within 30 days after the date this agreement is entered into, you may cancel this agreement at any time before delivery or commencement of performance. You lose the right to cancel if, after the 30-day period has expired, you agree to accept delivery or authorize commencement of performance.
In addition, there are other grounds that allow you to cancel this agreement. You may also have other rights, duties and remedies at law. For more information, you may contact the Ministry of Consumer and Business Services. To cancel this agreement, you must give notice of cancellation to the supplier, at the address set out in the agreement, by any means that allows you to prove the date on which you gave notice. If no address is set out in the agreement, use any address of the supplier that is on record with the Government of Ontario or the Government of Canada or is known by you.
If you cancel this agreement, the supplier has fifteen (15) days to refund any payment you have made and return to you all goods delivered under a trade-in arrangement (or refund an amount equal to the trade-in allowance). However, if you cancel this agreement after having solicited the goods or services from the supplier and having requested that delivery be made or performance be commenced within ten (10) days after the date this agreement is entered into, the supplier is entitled to reasonable compensation for the goods and services that you received before the earlier of the 11th day after the date this agreement was entered into and the date on which you gave notice of cancellation to the supplier, except goods that can be repossessed by or returned to the supplier.
Additionally, if the consumer is to receive goods under the agreement, the following statement [CP Reg 35(3)]:
If the supplier requests in writing repossession of any goods that came into your possession under the agreement, you must return the goods to the supplier's address, or allow one of the following persons to repossess the goods at your address:
- The supplier. A person designated in writing by the supplier.
- If you cancel this agreement, you must take reasonable care of any goods that came into your possession under the agreement until one of the following happens:
- The supplier repossesses the goods.
- The supplier has been given a reasonable opportunity to repossess the goods and twenty-one (21) days have passed since the agreement was cancelled. You return the goods.
- The supplier directs you in writing to destroy the goods and you do so in accordance with the supplier's instructions.
The requirements for these direct agreement "Consumer Information Statements" may, for agreements that are "substantially equivalent" to direct agreements as defined here, also be met by the supplier providing the consumer with a statement required under the legislation of another province or territory of Canada that is "substantially equivalent" to the above [CP Reg 35(4)].
General requirements for disclosure are explained at this link:
General Disclosure Requirements
(c) Consumer Cancellation Right on Supplier Default in Delivery of Consumer Agreement
"Direct agreements" to which the CPA applies may be cancelled by the consumer anytime "within one year after the date of entering into the agreement" if the consumer does not receive a copy of the agreement in accordance with (b) above [CPA s.43(2)].
(d) Early Consumer Cancellation
The consumer may "without any reason" cancel a direct agreement at any time up to 10 days after receiving the written copy of the agreement [CPA s.43(1)].
(e) Remedial Variations
For the most part, direct agreements are governed by the same general remedial provisions that govern most consumer agreements, which are discussed in Ch.7, "Civil Remedies".
However in the key area of consumer's restitution duties after they have cancelled or rescinded the consumer agreement, there may be variation. Anyone dealing with a direct agreement and having to consider that issue should carefully review the following discussions in the above-cited chapter:s.6(b): "Modification in Consumer's Restitution Duties for Specific Consumer Agreements [Reg 80]", and
s.6(d): "Additional Consumer's Restitution Duties Where Solicitation by Consumer and Early Performance of Direct Agreement [Reg 83]". (f) Sectors Exempted from Direct Agreement Rules
The following economic sectors, all of which have their own sector-specific chapters or law, are exempt from all direct agreement rules:- Public Auctions [CP Reg 5(1)]
- Perishable Food [CP Reg 7]
- Lottery Schemes [CP Reg 8]
- Motor Vehicle Dealer Sales [CP Reg 9(1)1,(2)]
- Real Estate and Business Brokers Sales [CP Reg 9(1)2,(2)]
- Travel Industry Sales [CP Reg 9(1)3,(2)]
- Cemetaries, Funeral and Related Sales [CP Reg 9(1)4,(2)]
- Payday Loans [CP Reg 9(3)]
Continue Chapter Here
|
