On October 3, 2023, the National Assembly of Quebec enacted Bill 29, the Act to protect consumers from planned obsolescence and to promote the durability, repairability and maintenance of goods (the "Act"). The Act received assent on October 5, 2023.
While Quebec is already recognized as a jurisdiction that is very favourable to consumers and purchasers given the obligations imposed on merchants and manufacturers in connection with the quality and durability of their products, this new Act serves to further strengthen the Consumer Protection Act ("CPA") and its obligations relating to the availability of replacement parts, repair services, and the information necessary to repair or maintain goods that by nature require maintenance. The Act also creates a new statutory warranty of good working order for certain new goods for specific durations.1
The Act contains a number of other major amendments to the CPA that manufacturers and merchants doing business in Quebec should be aware of, including notably:
- The government's new regulatory power to determine technical or manufacturing standards for goods, including standards for interoperability between goods and chargers.
- The prohibition on selling goods for which obsolescence is planned. It also prohibits any technique that makes it more difficult for consumers to maintain or repair goods.
- The requirement that automobile manufacturers provide the owner or long-term lessee of a vehicle with access to the automobile's data, on certain conditions.
- The obligation that merchants, in respect of long-term contracts of lease of automobiles, provide an inspection free of charge of the automobile before the end of the consumer's lease.
- The Court's ability to declare, on an application by the consumer, that an automobile is a "seriously defective automobile", in particular if the defects affecting it render it unfit for the purposes for which it was intended and several attempts have been made to repair it.
- The increase of penal fines, the possible imposition of monetary administrative monetary penalties, and the solidary liability of directors, officers and ultimate beneficiaries of a legal person for violations of the CPA and its regulations, unless they are able to prove that they exercised due diligence, taking all necessary precautions to prevent the offence.
The Act was adopted following a detailed examination by the Committee on Labour and the Economy that resulted in a number of amendments to the initial bill, including notably a requirement that the information necessary to repair or maintain goods referred to in section 39 CPA be available in French and, except for an automobile's data referred to in section 39.4 CPA, be available free of charge when it is accessible on a technological medium. In addition, and importantly, the Act also provides that in the event of a violation of certain provisions of the CPA, a legal person may be required to pay a fine of up to 5% of its worldwide turnover for the preceding fiscal year.2
II. The Warranty of Availability of Replacement Parts, Repair Services and the Information Necessary to Repair or Maintain Goods
First, it must be recalled that the CPA already imposed a legal warranty of availability of replacement parts and repair services on manufacturers and merchants for a reasonable time after entering into a contract.3 Manufacturers and merchants could avoid that warranty by warning the consumer in writing, before the contract was entered into, that they did not supply replacement parts or repair services.
Section 39 CPA now provides several new requirements concerning the availability of parts and repair services and adds obligations relating to the information necessary to maintain and repair goods. These obligations do not apply to all goods; rather, they only apply to goods that require maintenance work. Goods whose use may require the replacement, cleaning or updating of one of their components are deemed to be of a nature that require maintenance work.4 For such goods, replacement parts, repair services and information necessary to maintain or repair the goods, including, where applicable, diagnostic software and its updates, must be available for a reasonable time after the contract has been entered into. Moreover, it must be possible to install the replacement parts using commonly available tools and without causing irreversible damage to the goods. A regulation may eventually determine cases in which a tool is considered to be "commonly available". The information necessary to maintain or repair must also be available in French.
A merchant or manufacturer may be released from its obligations pursuant to section 39 CPA by warning the consumer in writing, before the contract is entered into, that he does not supply the replacement parts, repair services or information necessary to maintain or repair the goods. It is likely that a regulation will eventually determine the replacement parts and information necessary to maintain or repair goods in respect of which no merchant or manufacturer may release itself of such obligations. Eventual regulations may also determine the time for which those parts and that information must be available and the time within which the merchant or the manufacturer must, at the consumer's request, provide them.
Pursuant to section 39.1 CPA, the manufacturer must disclose, in the manner prescribed by regulation, the information relating to the replacement parts, repair services and information necessary to maintain or repair the goods whose availability must be guaranteed. Before the contract is entered into, the merchant must also disclose the information determined by regulation relating to the replacement parts, repair services and information necessary to maintain or repair the goods.5 The merchant or the manufacturer who is required to guarantee the availability of a replacement part, a repair service or information necessary to maintain or repair goods must also make them available at a reasonable price.6 A price is considered to be "reasonable" if it does not discourage the consumer from accessing it. A regulation may determine cases in which such a price is presumed to discourage consumer access. Again, however, such information, other than the automobile's data referred to in section 39.4 CPA, must be available free of charge when it is available on a technological medium.
In the event of breach of the obligations provided by section 39 CPA, the consumer may request that the merchant or manufacturer repair the goods. The merchant or manufacturer must advise the consumer in writing, within ten days of the consumer's request, of the time within which they propose to carry out the repairs.7 If the consumer declines a proposal by the merchant or manufacturer that is in conformity with the requirements of the Act, the consumer may have the repairs carried out by a third person and the merchant or manufacturer shall assume their reasonable costs. Should the consumer accept the proposal, but the merchant or the manufacturer fails to comply with the time specified to repair the goods, or if the merchant or the manufacturer fails to make a proposal in conformity with the requirements of the Act, the merchant or manufacturer must replace the consumer's goods with new or reconditioned goods, with equivalent functionalities, or must reimburse the consumer. In such a case, the consumer must then return the goods to the merchant or manufacturer.
III. The Warranty of Good Working Order for Certain Household Appliances
The Act creates a new statutory warranty of good working order for specific durations (to be determined by regulation) for certain new goods :8
- washing machine
- television set
- desktop computer
- laptop computer
- electronic pad
- cellular telephone
- video game console
- air conditioner
- heat pump
- any other goods determined by regulation
This new warranty is in addition to the other legal warranties of quality, durability and normal use provided by the CPA and the legal warranty of quality provided by the Civil Code of Québec("CCQ")9, which apply regardless of the type of good.10
The legal warranty of good working order covers parts and labour,11 but does not cover normal maintenance or the replacement of parts resulting from it, damage resulting from abuse by the consumer or any accessory.12 This warranty is effective (i) upon the delivery of the good,13 (ii) is binding on the manufacturer and the merchant14 and (iii) is for the benefit of both the initial purchaser and subsequent purchasers.15
In the case of repairs under this new warranty, the merchant or the manufacturer shall assume the reasonable transportation or shipping costs incurred in respect of the performance of the warranty and must carry out the necessary repairs and assume the related costs, or permit the consumer to have the repairs carried out by a third person, in which case it must assume the repair costs.16
The manufacturer of goods carrying a warranty of good working order must disclose, in the manner prescribed by regulation, the information relating to the warranty.17 Notably, the merchant must indicate the duration of the warranty near the advertised price of the goods or, in the case of a long-term lease of the goods, near their retail value, in a prominent manner.18 Once the contract has been entered into, the merchant must also send warranty information to the consumer as prescribed by regulation.19Failure to comply with these disclosure obligations constitutes a prohibited practice under section 215 CPA, and could result in the imposition of substantial monetary penalties.20
IV. Fines and Monetary Administrative Penalties
In addition to the civil actions that may be brought by consumers in the event of breach of obligations provided by the CPA or its regulations, fines can also be imposed by the Office de la protection du consommateur which oversees its application. While the CPA already included penal provisions providing for fines varying between $600 and $15,000 for a natural person and between $1,000 and $100,000 for legal persons depending on the contravention,21 the Act now provides that the following new contraventions are among those that will be considered to be prohibited practices subject to the most severe penalties:
- Failing to disclose the information referred to in sections 38.7 and 38.8 CPA concerning the legal warranty of good working order. 22
- Making it more difficult for the consumer or his mandatary to maintain or repair goods, including, in the case of an automobile manufacturer, any technique that makes it more difficult to access the automobile's data for the purposes of diagnostic, maintenance or repair. 23
- Selling goods for which obsolescence is planned; namely, reducing its normal operating life.24
- Advertising an automobile that has been declared to be a seriously defective vehicle without disclosing that fact. 25
- Failing to inform the consumer, before entering into a contract including an additional warranty, of the existence and duration of the warranty of good working order.26
For these prohibited practices, the Act raises the amounts of fines to between $2,500 and $62,500 for a natural person and to between $5,000 and the higher of $125,000 and 5% of its worldwide turnover for the preceding fiscal year for a legal person. Evidently, this latter possibility is a significant change that could result in very substantial fines for large multinational corporations. All of the minimums and maximums provided for these fines are doubled for a second or subsequent offence.27
If a person commits an offence under the CPA or its regulation, the person's directors, officers, mandataries, representatives or ultimate beneficiaries,28 are presumed to have committed the offence unless it is established that they exercised due diligence, taking all necessary precautions to prevent the offence.29
Lastly, the Act also creates a new monetary administrative penalty mechanism.30The government may determine by regulation the objectively observable failures to comply with the CPA or its regulations that may give rise to a monetary administrative penalty imposed by the president of the Office de la protection du consommateur. The government may also set out the conditions for applying a monetary administrative penalty and determine the amounts or the methods for calculating the amounts, which may vary according to the seriousness of the failure, without exceeding $1,750 in the case of a natural person or $3,500 in any other case. If a failure to comply continues for more than one day, it constitutes a new failure for each day it continues, which means that a failure that persists over time could result in the imposition of substantial monetary administrative penalties.
V. Coming into Force
Although certain changes made by the Act will come into force immediately, the majority of the new requirements imposed on manufacturers and merchants will only come into force later. In particular, the amendments relating to the warranty of good working order for certain household appliances will come into force three years after assent (October 5, 2023) and the amendments relating to the warranty of the availability of replacement parts, repair services and the information necessary to repair or maintain goods will come into force two years after assent.31
For affected businesses, the devil will be in the details, particularly given that the new obligations provided by the Act use a number of general terms and in some cases refer to more specific rules to be provided in regulations that have not yet been proposed. It is likely that the regulations will take time and generate further debate, in particular concerning the durations of the new warranty of good working order and how onerous the new obligations concerning the availability of replacement parts, repair services and the information necessary to repair or maintain goods will be. Nonetheless, manufacturers and merchants doing business in Quebec would be wise to begin identifying which of their products are or might be covered by the new requirements and begin to consider any changes required for compliance with the Act, including reviewing contract and warranty documents and any documentation associated with the maintenance and repair of their products.
We will be closely following developments in connection with the Act, and particularly regarding the eventual regulations applicable to the Act that will detail the new requirements including the duration of the warranty of good working order for some goods. Be sure to stay tuned!
1. The durations are to be determined by regulation at a later time.
2. CPA, s. 278.
3. CPA, s. 39.
4. CPA, s. 39.
5. CPA, s. 39.2.
6. CPA, s. 39.3.
7. CPA, s. 39.5.
8. CPA, s. 38.1.
9. Article 1726 CCQ.
10. For a summary of the relevant principles concerning the legal warranties applicable to product liability in Quebec, we invite you to consult our bulletin entitled "What Lawyers, Manufacturers and Sellers Need to Know about Product Liability Laws in the Province of Québec", available on our website (https://www.fasken.com/en/knowledge/2020/09/15-what-you-need-to-know-about-product-liability-laws-quebec).
11. CPA, s. 38.2.
12. CPA, s. 38.3. There may be exceptions to be determined by regulation.
13. CPA, s. 38.4.
14. CPA, s. 38.6.
16. CPA, s. 38.5.
17. CPA, s. 38.7.
18. CPA, s. 38.8.
19. CPA, s. 38.9.
20. CPA, ss. 227.0.1 and 227.0.3.
21. CPA, ss. 277 to 279.
22. CPA, s. 227.0.2.
23. CPA, s. 227.0.3.
24. CPA, s. 227.0.4.
25. CPA, s. 237.1.
26. CPA, s. 228.2.
27. CPA, s. 281.
28. Within the meaning of section 0.4 of the Act respecting the legal publicity of enterprises (chapter P-44.1).
29. CPA, s. 282.1.
30. CPA, ss. 276.1 to 276. 11.
31. Bill 29, s. 37.
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.