Canada: Bill 48 – Recent amendments to the Québec Consumer Protection Act

On December 14, 2006, the Québec National Assembly assented to An Act to amend the Consumer Protection Act and the Act respecting the collection of certain debts ("Bill 48"). The first major update to Québec’s Consumer Protection Act ("CPA") since 1978, Bill 48 affects a wide range of businesses, particularly those engaged in technology-related consumer transactions. Sellers can no longer hold consumers to agreements to arbitrate. Online sellers must meet new and stringent formalities in contracting with consumers. Telecom service providers are bound by the CPA’s Goods and Services Rules. Finally, the repair of audiovisual and other household goods is now regulated.

Should courts uphold business-to-consumer arbitration clauses that submit all disputes to binding arbitration, ruling out the possibility of court appearances and, more notably, class actions? For merchants, knowing that all disputes follow a uniform arbitration process reduces jurisdictional uncertainties and litigation costs and ensures disagreements are settled by an impartial adjudicator, not in the media. For consumers, the courtroom option provides access to collective remedies like class actions, precedent and a transparent court record on which other consumers can build. For merchant-consumer disputes brought under Québec law, Bill 48 settles the debate and prohibits binding mandatory arbitration clauses.

Soon after the 2002 Ontario case of Kanitz v. Rogers Cable Inc. upheld an arbitration clause in a manner which blocked a class action, the Ontario legislature amended that province’s Consumer Protection Act to invalidate pre-dispute clauses that preclude court hearings. Now Bill 48 enacts a similar rule in Québec under similar circumstances. In Dell Computer Corporation v. Union des consommateurs, the Québec Court of Appeal decided in 2005 that, although the Civil Code of Québec ensures consumers can try their case under Québec law, that does not mean that contractually imposed consumer arbitration clauses are prohibited since, in certain circumstances, an arbitration panel may be free to apply Québec law. Bill 48, enacted prior to the Supreme Court of Canada’s judgement in an appeal of the Dell Computer case, reverses this finding. No pre-dispute arbitration clause agreed to after December 14, 2006 will be upheld if it prohibits a class action or otherwise waives or restricts the consumer’s right to go to court.

Some industries are exempted from these rules - notably those in the insurance, gas and electricity, funeral, tradable securities and real estate sectors. These industries are instead regulated by sector-specific rules. However, most merchants who sell or otherwise make goods or services available to customers in Québec, no matter where the merchant is located, should review their standard customer agreements to ensure they are not relying on the ability to oust courts in favour of arbitration when a customer dispute arises. Consumer law is a matter of "protective public order" under Québec’s Civil Code: parties cannot avoid it by contractual agreement.

A distance contract is an agreement that a merchant and consumer conclude when they are not in one another’s physical presence. Internet sales are the most obvious example, but Bill 48’s provisions on distance contracts cover everything from catalogue-and-telephone shopping arrangements to consumer sales discussed in person but entered into over the phone, even if the salesperson and consumer negotiated most of the terms in a store. Retailers or service providers which have stores and who pay sales agents on commission to incent them to complete sales with consumers should consider instructing their agents to complete sales only in-store, or they may be surprised to find their business practices regulated by the distance contract regime.

Distance contracts were previously known as "remote parties contracts" - the regime’s French-language name, "contrat à distance," remains consistent with the pre-Bill-48 CPA - and the reformulation of the existing law imposes significant new responsibilities to online, telephone, and catalogue sellers. Sellers who do not review and, where necessary, overhaul their business processes to take these new responsibilities into account may have little recourse against buyers who fail to pay for what they have bought.

Bill 48 makes Québec the fifth province to implement the 2001 joint federal-provincial Internet Sales Contract Harmonization Template ("Template"), following Alberta (R.S.A. 2000, c. F-2), Manitoba (C.C.S.M. c. C200), Nova Scotia (N.S. Reg. 91/2002), and Ontario (S.O. 2002, c. 30; O. Reg. 17/05). By applying the Template to all distance contracts, Bill 48 adopts a one-size-fits-all approach consistent with previous remote-party rules and more straightforward than, for instance, Ontario’s separate rules for Internet, Remote, Direct, and Future Performance Agreements. Some rules designed for cyberspace may, however, prove cumbersome for the telephone or direct-mail "spaces."

The distance contract rules target three areas: informing the consumer, cancellation, and obligations upon cancellation.

Bill 48 sets out requirements for what the consumer is to be told, when and how. These obligations arise at four points in the sales process, twice before the consumer enters into the contract, and twice afterward.

Before a distance contract is entered into, the merchant must disclose a number of specific information items in a way that presents them prominently and comprehensibly and brings them expressly to the consumer’s attention. If the agreement is concluded online, the consumer must be able to "easily retain … and print" this information. Online sellers can thus reduce regulatory risk and demonstrate compliance by showing that their website design meets objective standards for prominent and comprehensible information display and by requiring the consumer to signify that information has been brought expressly to her or his attention. The same is true for catalogue and telephone sellers regarding their print design and telephone scripts, respectively. The items to be displayed prominently, before the contract is entered into, are:

• all names under which the merchant does business;
• the merchant’s address, telephone number, fax number and e-mail address;
• detailed description, characteristics and technical specifications of the goods or services in question;
• an itemized list of the goods’ or services’ prices, including associated costs and additional charges like tax, which cannot be omitted until the final bill. If there are possible third-party charges which cannot be determined, like customs duties, these must be described;
• total amount to be paid, number of instalments, rate and terms of payment;
• currency, if not Canadian dollars;
• the date on which the merchant will begin to perform its principal obligation;
• the mode of delivery, name of the carrier and place of delivery, if applicable;
• any cancellation, rescission, return, exchange or refund conditions;
• any other restrictions or conditions.

Having presented this information with the prominence, comprehensibility and express attention required and, if applicable, in a way that allows the consumer to easily print it out, such as an icon which opens the document in a universally printable format, the merchant must further "provide the consumer with an express opportunity to accept or decline the proposal and correct any errors." Until this opportunity has been offered and the consumer has accepted, a valid and enforceable contract cannot be formed.

If the consumer does agree to the contract, the merchant must create a written copy that reproduces all of the information indicated above as identically as possible, but adds to it the date the contract is entered into and the consumer’s name and address. Selling to Québec consumers therefore requires that the merchant obtain the consumer’s street address, even where the item being sold is delivered electronically. Merchants must also ensure that their use of this information complies with Québec’s privacy laws.

Finally, the merchant "must send a copy of the contract to the consumer within 15 days after the contract is entered into, in a manner that ensures that the consumer may easily retain it and print it." In the online context this 15-day period is similar to that of other provinces, following the Template, and may be met by sending the copy electronically. For distance contracts using other media, however, merchants should note that this period is considerably shorter than, for instance, the 60 days which non-Internet remote contractants have in Ontario.

Bill 48 gives teeth to its information requirements by allowing consumers to cancel their contracts when the above information requirements are not met. The distance contract rules provide two broad grounds for cancellation: a merchant’s failure to follow the necessary precontractual and contractual formalities, and a merchant’s failure to perform its principal obligation in a reasonably timely manner.

A merchant’s failure to provide all of the proper information in the proper form - whether before the contract is entered into; or in writing, with the consumer’s name, address and date of contract, after the contract is entered into - gives the consumer the right to cancel the contract within seven days of receiving the written copy or, if the contract is not received, within 30 days of entering into the contract.

A merchant’s failure to begin performing its principal obligation also gives the consumer the right to cancel. If the date on which that performance is to begin was specified, then the consumer may cancel if performance does not begin within 30 days of that date. If no date was specified, the consumer may cancel if performance does not begin within 30 days of the contract’s conclusion. If the contract is for a transport, lodging, restaurant or ticket contract, the consumer may cancel immediately upon the merchant’s failure to perform at the time specified. Should the failure to perform be due to the consumer’s action or negligence, however, no cancellation claim can proceed.

To exercise a valid cancellation right for either of the reasons listed above, the consumer must send a cancellation notice to the merchant. The notice need not follow any special form and may be in the form of a short letter. To give merchants who do business with Québec consumers time to adjust to the new regime, however, the cancellation rules will not come into force until December 15, 2007, or an earlier date that the government may specify in the interim.

Cancellation is effective from the moment a cancellation notice is sent. Merchants have 15 days from then to refund all sums paid, and consumers have 15 days from then to return goods in the state in which they were received.

Should the merchant fail to issue a refund, and should the obligation on which the merchant has defaulted have been paid for by credit card, the credit card provider becomes an alternative source for granting the refund. The consumer has 60 days following the merchant’s default - days 15 through 74 after the consumer notice has been sent - to make a so-called "chargeback request" to the credit card provider in written form and with several pieces of information: name, credit card number and expiry, merchant’s name, date of contract, amount charged and to be refunded, description of the goods, reason for cancelling the contract, and date of cancellation and means used to send the cancellation notice. The credit card issuer, in turn, must acknowledge receipt within 30 days and, within 70 days of receipt, make the chargeback. That includes cancelling the credit card charges at issue, but also any related accessory contracts or interest payments.

Before the passage of Bill 48, the CPA exempted "contracts regarding any telecommunications service supplied by an operating company" from the application of certain rules on goods and services, including remote-party contracts, warranties and sequential performance (recurring payment) contracts. That exemption had been established in order to unify Québec’s telecommunications activities under the Régie des télécommunications, which was created in 1988 but abolished in 1997.

There is some debate as to whether consumer issues relating to telecommunications services reverted automatically to the CPA’s mandate after the Régie was abolished, since only the Régie could designate an "operating company." Bill 48 renders that debate unnecessary starting April 1, 2007, when the provision abolishing the exemption takes effect. In any case the Office de la protection du consommateur has been active in mediating consumer disputes with mobile and other communications service providers. Those who provide telecommunications services within Québec, including Voice-over-Internet providers and others who may not be domiciled in Québec, should therefore ensure that they conform to the full range of CPA rules and regulations, including those goods and service rules that address distance contracts, as set out above; warranties, including replacement parts, repair service, durability and responsibility for latent defects; and sequential performance service contracts, including the right to cancel one’s contract at a penalty not to exceed the lesser of $50 or 10% of the cost of the remaining services contracted for.

The CPA regulates the commercial, non-warranty repair of household appliances. A free written estimate of a prescribed format must be provided before any work is undertaken; mandatory line items for the final bill are set out. Repairs are guaranteed for three months.

Bill 48 adds several items to the list of household appliances regulated in this manner, including computers, peripheral equipment, and audio and "audio-video" devices. The latter include most items that can be attached to televisions, such as video game consoles and television recording and time-shifting devices. Bill 48 also gives the National Assembly the ability to extend the appliances list by regulation, replacing the full legislative amendment required for every new appliance with a simple 30-day notice.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.