Business Practices Act, R.S.O. 1990, c. B.18

• Jurisdiction: Ontario

Business Practices Act

R.S.O. 1990, CHAPTER B.18

Historical version for the period December 13, 2002 to July 29, 2005.

Amended by: 1994, c. 27, s. 73; 1997, c. 19, s. 28; 1998, c. 18, Sched. E, ss. 40, 41; 1999, c. 12, Sched. G, s. 14; 2001, c. 9, Sched. D, ss. 13, 14; 2002, c. 30, Sched. E, s. 1.

Note: On a day to be named by proclamation of the Lieutenant Governor, this Act is repealed by the Statutes of Ontario, 2002, chapter 30, Schedule E, section 1. See: 2002, c. 30, Sched. E, ss. 1, 22.

Definitions

1. In this Act,

“business premises” does not include a dwelling; (“locaux commerciaux”)

“consumer” means a natural person but does not include a natural person, partnership or association of individuals acting in the course of carrying on business; (“consommateur”)

“consumer representation” means a representation, statement, offer, request or proposal,

(a) made respecting or with a view to the supplying of goods or services, or both, to a consumer, or

(b) made for the purpose of or with a view to receiving consideration for goods or services, or both, supplied or purporting to have been supplied to a consumer; (“assertion relative au consommateur”)

“Director” means the Director under the Ministry of Consumer and Business Services Act; (“directeur”)

“dwelling” means a premises or any part thereof occupied as living accommodation; (“logement”)

“goods” means chattels personal or any right or interest therein other than things in action and money, including chattels that become fixtures but not including securities as defined in the Securities Act; (“biens”)

“Minister” means the Minister of Consumer and Business Services; (“ministre”)

“regulations” means the regulations made under this Act; (“règlements”)

“services” means services,

(a) provided in respect of goods or of real property, or

(b) provided for social, recreational or self-improvement purposes, or

(c) that are in their nature instructional or educational; (“services”)

“Tribunal” means the Licence Appeal Tribunal. (“Tribunal”) R.S.O. 1990, c. B.18, s. 1; 1999, c. 12, Sched. G, s. 14 (1); 2001, c. 9, Sched. D, s. 13.

Unfair practices

2. For the purposes of this Act, the following shall be deemed to be unfair practices:

1. A false, misleading or deceptive consumer representation including, but without limiting the generality of the foregoing,

i. a representation that the goods or services have sponsorship, approval, performance characteristics, accessories, uses, ingredients, benefits or quantities they do not have,

ii. a representation that the person who is to supply the goods or services has sponsorship, approval, status, affiliation or connection the person does not have,

iii. a representation that the goods are of a particular standard, quality, grade, style or model, if they are not,

iv. a representation that the goods are new, or unused, if they are not or are reconditioned or reclaimed, provided that the reasonable use of goods to enable the seller to service, prepare, test and deliver the goods for the purpose of sale shall not be deemed to make the goods used for the purposes of this subparagraph,

v. a representation that the goods have been used to an extent that is materially different from the fact,

vi. a representation that the goods or services are available for a reason that does not exist,

vii. a representation that the goods or services have been supplied in accordance with a previous representation, if they have not,

viii. a representation that the goods or services or any part thereof are available to the consumer when the person making the representation knows or ought to know they will not be supplied,

ix. a representation that a service, part, replacement or repair is needed, if it is not,

x. a representation that a specific price advantage exists, if it does not,

xi. a representation that misrepresents the authority of a salesperson, representative, employee or agent to negotiate the final terms of the proposed transaction,

xii. a representation that the proposed transaction involves or does not involve rights, remedies or obligations if the representation is false or misleading,

xiii. 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,

xiv. a representation that misrepresents the purpose or intent of any solicitation of or any communication with a consumer.

2. An unconscionable consumer representation made in respect of a particular transaction and in determining whether or not a consumer representation is unconscionable there may be taken into account that the person making the representation or the person’s employer or principal knows or ought to know,

i. that the consumer is not reasonably able to protect his or her interests because of physical infirmity, ignorance, illiteracy, inability to understand the language of an agreement or similar factors,

ii. that the price grossly exceeds the price at which similar goods or services are readily available to like consumers,

iii. that the consumer is unable to receive a substantial benefit from the subject-matter of the consumer representation,

iv. that there is no reasonable probability of payment of the obligation in full by the consumer,

v. that the proposed transaction is excessively one-sided in favour of someone other than the consumer,

vi. that the terms or conditions of the proposed transaction are so adverse to the consumer as to be inequitable,

vii. that he or she is making a misleading statement of opinion on which the consumer is likely to rely to his or her detriment,

viii. that he or she is subjecting the consumer to undue pressure to enter into the transaction.

3. Such other consumer representations under paragraph 1 as are prescribed by the regulations made in accordance with section 16. R.S.O. 1990, c. B.18, s. 2.

Unfair practices prohibited

3. (1) No person shall engage in an unfair practice. R.S.O. 1990, c. B.18, s. 3 (1).

One act deemed practice

(2) A person who performs one act referred to in section 2 shall be deemed to be engaging in an unfair practice. R.S.O. 1990, c. B.18, s. 3 (2).

Rescission

4. (1) Subject to subsection (2), any agreement, whether written, oral or implied, entered into by a consumer after a consumer representation that is an unfair practice and that induced the consumer to enter into the agreement,

(a) may be rescinded by the consumer and the consumer is entitled to any remedy therefor that is at law available, including damages; or

(b) where rescission is not possible because restitution is no longer possible, or because rescission would deprive a third party of a right in the subject-matter of the agreement that the third party has acquired in good faith and for value, the consumer is entitled to recover the amount by which the amount paid under the agreement exceeds the fair value of the goods or services received under the agreement or damages, or both. R.S.O. 1990, c. B.18, s. 4 (1).

Exemplary damages

(2) Where the unfair practice referred to in subsection (1) comes within paragraph 2 of section 2, the court may award exemplary or punitive damages. R.S.O. 1990, c. B.18, s. 4 (2).

Liability

(3) Each person who makes the consumer representation referred to in subsection (1) is liable jointly and severally with the person who entered into the agreement with the consumer for any amount that the consumer is entitled to under subsections (1) and (2). R.S.O. 1990, c. B.18, s. 4 (3).

Liability of assignee

(4) Despite subsection 31 (2) of the Consumer Protection Act, the liability of an assignee of an agreement under subsection (1) or of any right to payment thereunder is limited to the amount paid to the assignee under the agreement. R.S.O. 1990, c. B.18, s. 4 (4).

Time for rescission

(5) A remedy conferred by subsection (1) may be claimed by the giving of notice of the claim by the consumer in writing to each other party to the agreement within six months after the agreement is entered into. R.S.O. 1990, c. B.18, s. 4 (5).

Delivery of notice

(6) A notice under subsection (5) may be delivered personally or sent by registered mail addressed to the person to whom delivery is required to be made, and delivery by registered mail shall be deemed to have been made at the time of mailing. R.S.O. 1990, c. B.18, s. 4 (6).

Evidence

(7) In the trial of an issue under subsection (1), oral evidence respecting an unfair practice is admissible despite the fact that there is a written agreement and despite the fact that the evidence pertains to a representation of a term, condition or undertaking that is or is not provided for in the agreement. R.S.O. 1990, c. B.18, s. 4 (7).

Application

(8) This section...