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Consumer Protection (Ontario) Law - Sector-Specific
Motor Vehicle Repair
(01 July 2013)- Overview
(a) General
(b) Negligence
(c) Contract, Warranties and Service Plans
(d) Combining Causes of Action
(e) Consumer Protection Act (CPA)
- Estimates
(a) Overview
(b) The 'Inequitable Exception'
(c) The 'Maximum Amount' Exception
(d) Content and Disclosure Requirements for Estimates
(e) Fees for Providing Estimates ('Estimate Fees')
. Overview
. Elements of an Estimate Fee
. Disclosure Before Estimate Fee Charged
. Estimate Fee Forgiven Where Work Authorized and Done
- Consumer Authorization of Repair
(a) Overview
(b) The 'Inequitable Exception'
(c) Form and Content Requirements for Consumer Repair Authorizations
. Overview
. Written Authorizations
. Non-Written Authorizations
- Posting of Signs
- Repair Warranties
(a) Overview
(b) Where Repair Warranty Breached and Return to Repairer Thereby Impractical
(c) Voiding of Repair Warranty Where Misuse of Parts
(d) Return of Defective Parts
(e) Exemptions from Repair Warranty
- Return of Removed Parts
(a) Duty to Return Removed Parts; Consumer Waiver
(b) Treatment of Removed Parts
(c) Exceptions
- Invoices
- Regulation of Cost of Repair
- Remedies
(a) Overview
(b) General CPA Civil Remedies
(c) Sector-Specific Remedies
(d) Unfair Practices
Caution #1
This sector involves law from the Ontario Consumer Protection Act (CPA). Anyone considering using CPA law should first carefully sort out which of its rules apply to their situation. Do not assume that because you have found the chapter dealing with the relevant economic sector that you have all the right CPA rules. The steps to do this are explained at this link: Identifying Which CPA Rules Apply to Your Situation
Caution #2
This chapter does not include the Repair and Storage Lien Act (RSLA) which can also bear on the subject of motor vehicle repair. I hope to address this in future.
1. Overview
(a) General
From the consumer's perspective, the subject of motor vehicle repair law is primarily that as codified by Ontario's Consumer Protection Act (CPA), and that is the subject of most of this chapter.
However before the CPA, and still surviving it [CPA 6], came the common law of tort, contract - and of course warranties. It is quite possible, and in most cases advisable, to combine both common law and CPA-based causes of action against the defendant 'repairer'. I discuss all of these potential causes of action briefly below.
(b) Negligence
The 'main' of all the torts is negligence. It is the broadest and most widely used of the torts and is by far the most general. Applying to practically any situation where humans and their interests interact, it has its own small insular language of 'duty of care', 'standard of care', 'remoteness'. 'foreseeability' and such but what it really amounts to for present purposes is the question of whether the defendant competently and responsibly performed their job.
As most motor vehicle repair claims are under $35,000 in value they will be advanced as civil claims in the Small Claims Court, where judges don't as a rule split hairs over the latest in correct tort terminology. Plaintiffs can expect their situations to be judged on a practical, non-legal standard.
(c) Contract, Warranties and Service Plans
A 'warranty', so often involved in motor vehicle repair legal disputes, are creatures of contract law. Contract law draws a distinction between two primary sorts of contractual terms: 'conditions' and 'warranties'. 'Conditions' are terms so significant and material to the whole contract that their breach entitles the aggrieved party to claim that the 'whole deal is off', to disregard their duties under a contract and to sue for damages. A 'warranty' on the other hand, when not 'honoured' by the provider of the warranty, only gives an entitlement to sue for damages.
Similar to warranties are 'service plans', typically contracts for regular maintenance such as oil and filter changes.
Consumer law primarily regarding supplier disclosure of contractual terms for purchased warranties and service plans is set out in the Motor Vehicle Dealers Act, 2002, and is discussed in Ch.4, ss.7-8: Types of Contracts and Disclosure: Extended Warranties and Service Plans of the Isthatlegal.ca Motor Vehicle Dealers (Ontario) Legal Guide.
The motor vehicle sales and repair trades have made much of warranties and service plans, printing up scroll-work certificates and making them purchasable commodities unto themselves (eg. 'extended' warranties, 'drive-train' warranties, 'service plans' etc).
When you strip warranties (not service plans) down to their essence though, they are often little more than what the law of contract would impose on the relationship in any event (without extra charge): ie. competence, good workmanship and the use of sound parts. The most a purchased warranty may offer the consumer is 'less grief' in getting repair or replacement performed in some circumstances, though not of course always - for example if the dealer alleges that damage was caused by misuse.
The CPA combines with the MVDA, 2002 and the Sale of Goods Act (SGA) to supplement the common law of contract with statutory law that apply primarily to goods (ie. parts), but as well in one important case to services (ie. repair) as well [CPA 9]:CPA 9(1)
The supplier is deemed to warrant that the services supplied under a consumer agreement are of a reasonably acceptable quality.
CPA 9(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. These CPA and SGA statutory warranties are discussed in more detail in Ch.5, s.3 ["CPA General Consumer Rights: Warranties and Conditions Preserved"].
(d) Combining Causes of Action
Tort claims can - and usually should - be advanced parallel with contract claims, and CPA-based claims (below) for that matter. Normally, combining them all is just good practice in case one runs into technical problems with one or more.
Principles of pleading in the Small Claims Court are discussed generally in the Isthatlegal.ca Small Claims Court Guide [Ch.8 "Pleadings"], but generally that court is quite forgiving of laypersons' attempts to get their points across.
(e) Consumer Protection Act (CPA)
While tort and contract issues above tend to focus on the end-result of the manufacturer's or repairer's efforts, CPA law tends to focus on the repairer-consumer interaction. This is done with an eye to reducing consumer abuses brought about by an imbalance of expertise favouring the repairer. Most drivers who are not mechanically-trained or experienced have little ability to question the mechanic's assertion that they need an engine head, transmission - or an entire new motor for that matter.
Key CPA terminology includes [CPA 55]:- "repairer" means a supplier who works on or repairs vehicles or other prescribed goods;
- "vehicle" means a motor vehicle as defined in the Highway Traffic Act.
Since no regulation has been passed to define what "other prescribed goods" are, the CPA Part VI 'repair' provisions are really only about motor vehicle repair.
The definition of 'motor vehicle' is drawn from the Highway Traffic Act, and can be quite complex when dealing with things that have only a marginal claim to being a 'vehicle' - or for that matter having a 'motor'. Many new forms of transportation brought about by energy conservation and modern urban living stress the limits of the definition. For present purposes I will not explore this further other than to point out the obvious that overwhelmingly we are talking about personal use cars, trucks, camper-vans and the like, permitted and licensed to travel on Ontario roads. And remember that the CPA generally is limited to 'consumer' transactions, which covers "an individual acting for personal, family or household purposes and does not include a person who is acting for business purposes" [CPA 1].
The CPA motor vehicle repair regime regulates several important aspects of the trade, including:- Estimates
By requiring in most circumstances detailed written estimates, and by requiring final repair cost to amount to 10% of the estimate given.
- Consumer Authorization
By clearly requiring and recording evidence that the consumer gave authorization for work or repairs to be done.
- Warranties
By requiring a minimum standard of warranty protection over labour and most parts.
- Invoices
By imposing content and detail requirements on invoices for repairs done.
2. Estimates
(a) Overview
The CPA regulates the often difficult area of motor vehicle repair 'estimates', which is defined as "an estimate of the total cost of work on and repairs to the goods being repaired" [CPA 55].
The basic rule of motor vehicle estimates is that "(n)o repairer shall charge a consumer for any work or repairs unless the repairer first gives the consumer an estimate that meets the prescribed requirements" [CPA 56(1)]. Read alone, this provision seems simple: ie. 'if no estimate, I don't have to pay' - great! But it's not that simple.
(b) The 'Inequitable Exception'
Practically all of the many specific CPA consumer protections (including this one) are subject to the 'inequity exception' [CPA 93(2)], which itself excepts the generic CPA consumer protection that reads: "(a) consumer agreement is not binding on the consumer unless the agreement is made in accordance with this Act and the regulations" [CPA 93(1)].
The CPA 93(2) 'inequity exception' operates "if the court determines that it would be inequitable in the circumstances for the consumer not to be bound." This is the most commonly litigated provision in the entire CPA, and it arises normally when a 'supplier' sues a 'consumer' who is arguing that one of similar consumer protections operates in their favour.
As you will see from a review of the case extracts on the 'inequitable exception' [see Ch.7, s.3: 'General Civil Remedies: General Rescission (Cancellation) Remedies'], the courts usually find that the CPA 93(2) exception applies to remove these primary protections from the consumer, on 'equitable' grounds. 'Equity' is a time-honoured and major branch of law that provide for a more compassionate, fairer interpretation of cases and is concerned with such concepts as laches (undue delay), 'clean hands' (the concept of whether a party has been unethical in the matter) and more.
In the specific case of the estimates rule [CPA 56(1)] the CPA provides [by 116(1)(b)(v); Ch.9. s.11(b)] that that charging for repairs without providing a valid estimate is a prosecutable offence (remember, the 'inequitable exception' does not apply to the offence provisions).
If those are your facts, then the legal fact that the supplier has 'committed' a CPA offence (even though they have not been charged or convicted) should constitute 'unclean hands' and thus avoid the operation of CPA 93(2).
Consumers involved in such a case are forewarned that the courts have not been friendly to attempts to avoid the inequitable exception, typically using it to override basic consumer protections such as CPA 93(1) and CPA 56(1). Expect the inequitable exception to be the central argument in your case.
(c) The 'Maximum Amount' Exception
Another exception is where all of the following occur [CPA 56(2)]:- the repairer offers to give an estimate but the consumer declines;
- the consumer specifically authorizes the maximum amount that he or she will pay for the work and repairs, and
- the final cost is not more than that consumer-specified amount.
(d) Content and Disclosure Requirements for Estimates
In order for an 'estimate' to allow for the charging (of a bill) for repair services, it must comply with the following disclosure information [CPA Reg 48]:- Consumer Name
- Repairer Name
The legal name of the individual, partnership or corporation of the repairer, and as well any business name used.
- Repairer Contact Information
The telephone number and business address of the repairer, and information respecting other ways, if any, in which the repairer can be contacted, such as the fax number and e-mail address.
- Motor Vehicle Identification
The make, model, vehicle identification number and licence number of the vehicle.
- Odometer Reading
The odometer reading of the vehicle at the time of the estimate.
- Description of Work and Repairs
An exact description of the work to be done on and the repairs to be made to the vehicle.
- Detailed List of Parts
An itemized list of the parts to be installed and a statement as to whether each part is a new part provided by the original equipment manufacturer, a new part not provided by the original equipment manufacturer, a used part or a reconditioned part.
- Cost of Parts
The amount that the consumer will be charged for each part listed above.
- Hours, Rates and Labour Charges
The number of hours to be billed for doing the work and making the repairs, the hourly rate to be charged, any flat rate that will be applied in respect of any of the work or repairs, and the total charge for labour.
This information is elaborated on below in s.4 ["Posting of Signs: Labour Costs Calculation"].
- List of Ancillary Goods and Services, with Charges
An itemized list of all other goods and services, such as storing the vehicle, picking up or delivering the vehicle or providing the consumer with another vehicle on a temporary basis, that are to be provided to the consumer in connection with the transaction and for which the consumer will be charged, and the amount to be charged for each such good or service.
- Whether Return of Parts Declined
If the consumer has declined the return of any parts to be removed in the course of work on or repairs to the vehicle, a statement to that effect and the resulting reduction, if any, in price [see s.6, "Return of Removed Parts", below].
- Total Bill
- Date of Estimate and Date Estimate Expires
The date on which the estimate is given and the date after which it ceases to apply.
- Date of Completion
The date by which the work and repairs will be completed.
- Statement Regarding Amount of Final Bill
That the repairer will not charge the consumer an amount that exceeds the amount estimated above by more than 10 per cent [this corresponds to the requirement set out in CPA 58(2)].
General requirements for disclosure are explained at this link: General Disclosure Requirements.
(e) Fees for Providing Estimates ('Estimate Fees')
. Overview
Terms can get a little confusing here, but what we have been considering above were repair 'estimates', that is - estimates for the cost of doing the work and repairs. Here however, we are considering 'estimate fees' - that is, fees charged to a consumer for the service of providing the 'estimate'. These are meant to compensate the repairer for the work and parts necessary to dis-assemble or otherwise investigate the problem so that a competent estimate for the repairs can then be provided.
. Elements of an Estimate Fee
In what is apparently an effort to give some guidance as to what are legitimate elements or aspects of an estimate fee, the CPA sets out that the following are "deemed" to be included in an estimate fee [CPA 57(2)]:... the cost of diagnostic time, the cost of reassembling the goods and the cost of parts that will be damaged and must be replaced when reassembling if the work or repairs are not authorized by the consumer. . Disclosure Before Estimate Fee Charged
Estimate fees may only be charged if the consumer is informed in advance of the charge and its amount [CPA 57(1)]. There is no specific requirement on how this disclosure is made other than the general requirements for all disclosure made under the CPA: General Disclosure Requirements.
. Estimate Fee Forgiven Where Work Authorized and Done
Further, where the work or repairs are both authorized and subsequently completed, no estimate fee may be charged [CPA 57(3)] - ie. the charge for a fee estimate is 'forgiven' or waived by the repairer when the work or repair is authorized and then actually done. It is only where the work or repair is not authorized or done that a fee estimate may legitimately be charged and collected.
This rule is however excepted where "the repairer is unable to obtain, without unreasonable delay, authorization to proceed with the work or repairs" and subsequently "the goods are reassembled before being worked on or repaired so that the goods can be moved in order to free repair space" [CPA 57(4)] - eg. where the consumer is slow in giving or refusing authorization.
3. Consumer Authorization of Repair
(a) Overview
The starting point of the CPA law of repair authorization is that: "(n)o repairer shall charge for any work or repairs unless the consumer authorizes the work or repairs" [CPA 58(1)]. For such 'authorization' to be effective from the supplier/repairer's point of view it must be compliant with the form and content requirements set out in (c), below [CPA 59].
(b) The 'Inequitable Exception'
Similar to s.2(b) above [s.2(b): 'Estimates: The 'Inequitable Exception''], and assuming that you have the facts to support your arguments (ie. no valid authorization was given), the CPA 93(2) equity issue should be resolved in the consumer's favour due to the offence of 'charging before authorization' [CPA 116(1)(b)(v)]. That is, the facts that would substantiate a CPA conviction for charging without authorization constitute 'unclean hands' on the part of the supplier, and thus avoid the operation of the 'inequitable exception' to the CPA s.58(1) authorization requirement.
(c) Form and Content Requirements for Consumer Repair Authorizations
. Overview
There are two forms of CPA-compliant consumer authorizations: written and 'otherwise' (ie. oral, telephone, etc).
. Written Authorizations
There are no CPA-mandated form or content requirements for a written authorization, but most credible repairers will be using written estimate forms that have a blank 'authorization' statement added to the bottom. Be sure to get a copies of this both before (when it is an estimate) and after you have signed it (now an authorization).
Otherwise a consumer would be wise to insist on a fully CPA-compliant written estimate [as set out in s.2 above] and to use that as the basis of any separate written authorization which might read as follows (keep a copy for your records): eg.
I authorize you, _______________ (repairer name), to perform work and repair on my motor vehicle [add vehicle ID info here] in accordance with your written estimate of _____________ (date), excluding the following work and repair ________________ (indicate nil if applicable).
Signature
Printed Name . Non-Written Authorizations
The most common forms of non-written consumer authorization will be in-person orally or by telephone. The CPA imposes 'recording' rules (logically on the supplier/repairer) for such unwritten authorizations, without which the authorization is ineffective and the rule cited in (a) above (inability to charge for work or repair) will apply [CPA 58-59].
The requirements are that the following information be recorded respecting the authorization [CP Reg 49]:- the name of the person giving the authorization;
- the date and time of the authorization;
- if given by telephone, the telephone number;
- if given other than by telephone, "information regarding how the person giving the authorization can be contacted using (that) other method".
4. Posting of Signs
The CPA requires that repairers "who work on or repair vehicles" must post one or more signs, "in such a manner that the disclosure of the information is clear, comprehensible and prominent", with the following information [CPA 60; CP Reg 50]:- Estimate Requirements
That the repairer is required to provide a written estimate unless:
- the repairer offers to give the consumer an estimate and the consumer declines the offer of an estimate,
- the consumer specifically authorizes a maximum amount that the consumer will pay the repairer to do the work and make the repairs, and
- the cost charged for the work and repairs does not exceed the maximum amount authorized by the consumer.
- Estimate Fees
Whether there is a fee for an estimate and, if so:
- the amount of the fee, and
- that if the work and repairs are authorized and carried out, the fee for the estimate will not be charged unless the authorization is unreasonably delayed and the vehicle is reassembled before being worked on or repaired so that it can be moved in order to free repair space.
- Labour Costs Calculation
A description of the method that will be used to compute labour charges, including:
- the hourly rate that will be charged,
- whether a flat rate will be applied in respect of any of the work or repairs and, if so, the flat rate and the work or repairs to which it will be applied, and
- whether there will be a charge for diagnostic time and, if so, the manner of determining the amount that will be charged.
- Whether Repairers Receive Commissions on Parts and If So How
Whether the repairer or any of the persons doing the work or making the repairs on the repairer's behalf receive any commissions for parts sold and, if so, the manner of determining the commission and the parts to which it applies.
- List of Chargeable Goods and Services and Costs
An itemized list of all goods and services, other than parts, shop supplies and labour, for which the consumer may be charged, such as storing the vehicle, picking up or delivering the vehicle or providing the consumer with another vehicle on a temporary basis other than services to which Part VI.1 of the Act [Tow and Storage Services] applies, and the amount that will be charged for each such good or service.
- Parts Available
That each part removed in the course of work or repairs will be available to the consumer after the work and repairs are completed, unless:
- the repairer is advised, at the time the work and repairs are authorized, that the consumer does not require the return of the part,
- the part is replaced under a warranty that requires the return of the part to the manufacturer or distributor, or
- the consumer is not charged for the replacement part or for work on or repair to the part.
General requirements for disclosure are explained at this link: General Disclosure Requirements.
5. Repair Warranties
(a) Overview
The CPA imposes a specific 'repair warranty' with respect to new or reconditioned parts installed (if the parts were "warranted by the manufacturer of the vehicle when the vehicle was sold as new") and for the labour required to install them. The warranty lasts to the earlier of 90 days or 5,000 kilometres, or to the extent of more favourable terms "in terms of time and distance" of a warranty offered by the repairer or parts manufacturer [CPA 63(1); CP Reg 52(b,c)].
This repair warranty is in addition to any other general warranties that may favour the consumer as set out in Ch.5, s.3 ["General Consumer Rights: Warranties and Conditions Preserved"] [CPA 63(2)].
(b) Where Repair Warranty Breached and Return to Repairer Thereby Impractical
Where a 'repair warranty' (not the general warranties mentioned above) is breached such that the vehicle becomes inoperable or unsafe, and where "it is not reasonable to return the vehicle to the original repairer", then the "person having charge of the vehicle" may have further repair work done at the closest available facility [CPA 63(3)].
The consumer (warranty holder) may then recover from the original repairer the cost of the original repair (not the cost of the later repair), and reasonable towing charges [CPA 63(4)]. The original repairer in turn is then entitled to recover compensation for such re-payments from the supplier of any defective part [CPA 63(8)].
Note that the CPA does not make the cost of the later repair recoverable against the original repairer. Where that amount is appreciably more than the cost of the original repair, and especially where a negligent initial repair has precipitated additional damages, it may be possible to advance a claim for those new costs under the common law of contract and negligence.
(c) Voiding of Repair Warranty Where Misuse of Parts
A 'repair warranty' is voided with respect to a vehicle part by misuse or abuse of that vehicle part by the consumer [CPA 63(5)], but no repairer shall refuse to honour the warranty unless they have "reasonable grounds" for concluding that such abuse or misuse occured [CPA 63(6)].
(d) Return of Defective Parts
A consumer who seeks to have a warranty honoured by means of payment shall, if so requested by the original repairer, and if practical to do so, return to the original repairer the defective parts, at their expense [CPA 63(7)].
(e) Exemptions from Repair Warranty
The following are exempt from the 'repair warranty' described in this section [CP Reg 52]:- fluids,
- filters,
- lights,
- tires and
- batteries.
6. Return of Removed Parts
(a) Duty to Return Removed Parts; Consumer Waiver
Repairers must both offer to return to the consumer all parts removed from the vehicle in the course of work or repair. Unless advised at the time that the work or repair is authorized that such return is unnecessary they shall return the parts. That is, consumers can waive this right of part return, but only if they do so at the time that they authorize the work to be done [CPA 61(1)].
(b) Treatment of Removed Parts
The removed parts must be kept separate from parts relating to other jobs, and if return is requested by the consumer, shall be returned to the consumer in a clean container [CPA 61(2)].
(c) Exceptions
The rules set out in (a) and (b) above do not apply to any of the following situations [CPA 61(3)]:- where the new parts are not charged for,
- where no charge is made for work or repair on the part, or
- where parts must be returned to the manufacturer or distributor as a term of their replacement under warranty.
7. Invoices
When work or repair is completed, the repairer is required to deliver a detailed written invoice to the consumer, containing the following disclosure [CPA 62; CP Reg 51]:- Consumer Name
- Repairer Name
The legal name of the individual, partnership or corporation of the repairer, and as well any business name used.
- Repairer Contact Information
The telephone number and business address of the repairer, and information respecting other ways, if any, in which the repairer can be contacted, such as the fax number and e-mail address.
- Motor Vehicle Identification
The make, model, vehicle identification number and licence number of the vehicle.
- Date of Authorization of Work or Repairs
- Date of Completion of Work or Repairs
- Date of Return of Vehicle to Customer
- Odometer Reading
The odometer reading of the vehicle at the time that the consumer authorized the work and when the vehicle is returned to them.
- Description of Work and Repairs
An exact description of the work done and the repairs made to the vehicle.
- Detailed List of Parts
An itemized list of the parts installed and a statement as to whether each part is a new part provided by the original equipment manufacturer, a new part not provided by the original equipment manufacturer, a used part or a reconditioned part.
- Cost of Parts
The amount that the consumer is being charged for each part listed above.
- List of Shop Supplies Charged
An itemized list of the shop supplies used and for which the consumer is being charged, and the amount charged for each of the supplies.
- Labour Charges
The total labour charge and the method used to compute it, including, the number of hours billed, the hourly rate applied, amounts of any flat rate charges and to what it was applied, and the amount of any charges for diagnostic time.
- List of Ancillary Goods and Services, with Charges
An itemized list of all other goods and services charged, such as storing the vehicle, picking up or delivering the vehicle or providing the consumer with another vehicle on a temporary basis, that are to be provided to the consumer in connection with the transaction and for which the consumer will be charged, and the amount charged for each such good or service.
- Return of Parts Details
If the consumer has declined the return of any parts to be removed in the course of work on or repairs to the vehicle, a statement to that effect and the resulting reduction, if any, in charge [see s.6, "Return of Removed Parts", above].
- Total Bill
Total bill and terms and methods of payment.
- Amount of Prior Estimate or Limit
If an estimate was given, its amount. If none was given then the maximum amount of charge authorized by the consumer.
- Repairer Warranty Details Where Meets or Exceeds CPA Minimum Warranty
If the repairer's warranty over labour, new original parts, or other new or reconditioned parts is equal to or better than the CPA mandated warranties (earliest of 90 days or 5,000 kilometres) [see s.5: "Repair Warranties", above], then similar time and distance details of the warranty for labour and each part installed.
- Statement of CPA Minimum Warranty Details
Statements, with respect to all labour and each part not covered by a warranty that meets or exceeds the CPA minimum warranty (noted immediately above):
- that the repairer warrants them all to the early of 90 days or 5,000 kilometres;
- that such warranty may not be waived by the consumer; and
- that the warranty does not apply to fluids, filters, lights, tires or batteries, or to a part that was not warranted by the manufacturer of the vehicle when the vehicle was sold as new.
- Currency
The currency in which amounts are expressed, if it is not Canadian currency.
- Restrictions, Limitations and Conditions
Any other restrictions, limitations and conditions that are imposed by the repairer.
- Consumer Information Statement
The Consumer Protection Act, 2002 provides you with rights in relation to having a motor vehicle repaired. Among other things, you have a right to a written estimate. A repairer may not charge an amount that is more than ten (10) per cent above that estimate. If you waived your right to an estimate, the repairer must have your authorization of the maximum amount that you will pay for the repairs. The repairer may not charge more than the maximum amount you authorized. In either case, the repairer may not charge for any work you did not authorize.
If you have concerns about the work or repairs performed by the repairer or about your rights or duties under the Consumer Protection Act, 2002, you should contact the Ministry of Consumer and Business Services.
General requirements for disclosure are explained at this link: General Disclosure Requirements
8. Regulation of Cost of Repair
While not imposing anything like the extensive consumer cost regulation of Ontario residential tenancies law, the CPA does provide some rules respecting the cost of repairs.
Firstly, and already mentioned above respecting the information content of 'estimates', where an estimate is given repairers may neither charge nor recover from a consumer an amount more than 10% above the amount set out in the estimate [CPA 58(2)].
Secondly, and in an attempt to hinder the practice of charging more for insurance-covered repairs, the CPA provides that:CPA 64
No repairer shall give an estimate or charge an amount for work or repairs that is greater than that usually given or charged by that repairer for the same work or repairs merely because the cost is to be paid, directly or indirectly, by an insurance company licensed under the Insurance Act.
9. Remedies
(a) Overview
In addition to the common law law remedies of tort, contract and restitution, CPA civil court remedies fall into three categories: 'general', 'sector-specific' (ie. those specific to the motor vehicle repair sector), and 'unfair practices'.
Non-compliance with any of the general consumer rights [see Ch.5: "General Consumer Rights"] or with most of the sector-specific rights set out in this chapter can usually be addressed using the general remedies explained in Ch.7 ["CPA General Civil Remedies"]. These are summarized in (b) below.
However some sector-specific rights have their own remedial procedures [discussed in (c) below].
Any 'unfair practice' provisions (which deal primarily with 'false, misleading or deceptive' and unconscionable representations) which may have specific relevance to motor vehicle repair are set out in (d) below.
As for non-civil court remedies, the CPA provides for a range of administrative Orders [see Ch.8: "Administrative Enforcement"] and regulatory prosecutions [Ch.9: Prosecutions], neither of which are aggressively pursued by the Ministry of Consumer Services or the Director of the Consumer Protection Branch.
(b) General CPA Civil Remedies
. Overview
This is a summary of the general civil remedies available to consumers under the CPA. The full version of this discussion is at Ch.7: "General Civil Remedies".
These remedial provisions apply to violations of general CPA consumer rights such as warranties, rules about estimates and illegal charges, prohibitions against negative-option contract formation [see Ch.5: "General Consumer Rights"] - and as well to non-compliance with most of the specific rights discussed in this chapter.
. Rescission
Typically, supplier (here 'repairer') non-compliance with any CPA right allows the consumer to cancel the consumer agreement at their election, on the delivery of a 'Notice of Cancellation' to the supplier.
However the form of cancellation (more properly: 'rescission') used in the CPA does not just end the consumer's duties under the consumer agreement from the date of cancellation and then forward into the future. Rather the cancellation or rescission is 'ab initio' ('from the beginning' of the consumer agreement).
. Restitution
This form of 'ab initio' cancellation then necessitates that both parties, consumer and supplier alike, engage in post-cancellation restitution to each other respecting all that has passed between them since the consumer agreement commenced. Typically this involves the return of goods by the consumer and the return of monies paid by the supplier. In the case of past services performed or perishable goods typically a value compensation provision is imposed on the consumer.
From the point that Notice of Cancellation is delivered, both parties are under specific timelines to complete their specific restitution duties.
. Right of Civil Action
Failure of a party to fulfil their restitution duties in the time required then automatically triggers a right of civil action in the aggrieved parties (the original Notice of Cancellation doubling as a de facto 'demand' notice). Practically most such claims will be suited to the Small Claims Court with it's $35,000 monetary jurisdiction, and parallel jurisdiction over the return of chattel property to the same dollar value.
Civil action is also a possibility in some cases where the consumer has not rescinded the consumer agreement fully, for example with the case of illegal charges. In that case there is still a 'Notice' requirement, but if the supplier fails to refund the monies the consumer can sue.
. Special Credit Card Remedies
Further, where consumer payments which are now subject to restitution were originally made by credit card, the consumer has a 'back up' right to demand, and then proceed in court, against the credit card issuer should the supplier remain in default of their restitution duties.
. Common Law Right of Action Preserved
The CPA rights of action do not prohibit use of common law remedies in tort, contract and restitution and claims may (and when called for, should) be advanced both under the CPA and common law causes of action.
(c) Sector-Specific Remedies
The CPA's motor vehicle repair rules discussed in this chapter add two immediate forms of remedy as follows:- where no CPA-compliant estimate is issued (or otherwise waived by the consumer giving a charge maximum), then the repairer is no longer entitled to charge for the work or repair performed [see s.2(a) above];
- where no written, or unwritten but properly-recorded, authorization for the repair or work is given by the consumer, then the repairer is no longer entitled to charge for the workk or repair performed [see s.3(a) above].
(d) Unfair Practices
. Examples of Unfair Practices Relevant to Motor Vehicle Repair
'Unfair practices' are discussed at length in Ch.6. They primarily address 'false, misleading or deceptive' and 'unconscionable' representations. Specific unfair practices which may be more likely to arise in motor vehicle repair situations may include the following:- False or Misleading Representation Re Quality of Goods or Services
"A representation that the goods or services are of a particular standard, quality, grade, style or model, if they are not." This category resembles certain 'conditions and warranties' implied into consumer agreements by the CPA, and as well some imported into the CPA from the Sales of Goods Act. These are discussed in Ch.5, s.3: "General Consumer Rights: Warranties and Conditions Preserved".
- False or Misleading Representation Re Used Goods as New
"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." - False or Misleading Representation Re Degree of Use of Goods
"A representation that the goods have been used to an extent that is materially different from the fact." - False or Misleading Representation Re Timing of Availability
"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." A fact example of this might be where parts required for repairs were promised for delivery on a certain day when the repairer knew that they were presently out-of-stock and that new stock was not expected to be delivered until after the date promised. The repairer is motivated to close the sale and get the money now, and prepared to fob the consumer off with excuses later. A 'negligence' version of this could be where the repairer simply never checked stock availability before assuring the consumer of a delivery date.
- False or Misleading Representation Re the Need for Repair or Replacement
"A representation that a service, part, replacement or repair is needed or advisable, if it is not." This is self-evident. It is particularly applicable to motor vehicle repair.
- False or Misleading Representation Re Material Facts
"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." A 'material fact' is one which is pivotal to your decision to make a purchase. An example of this might be where the repairer tells you that your car is 'dangerous' to drive in its current condition when the problem is minor.
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