I. Statutory Reform

• Author: John D. McCamus
• Profession: Professor of Law. Osgoode Hall Law School, York University
• Pages: 361-363

Page 361

Consumer protection legislation in a number of provinces has significantly modified the law of misrepresentation as it applies to consumer transactions.¹⁵⁵These statutory schemes attempt, to varying degrees, to regulate consumer sales practices within the province and to provide civil redress to consumers who have been injured by such practices. In these statutory schemes, consumer transactions are typically defined as transactions between a commercial seller and a consumer acquiring goods and certain kinds of services for personal rather than business use. With respect to the representation, these statutes typically set forth an extended definition of the notion of misrepresentation, capturing utterances made by commercial sellers that would not be caught by the common law definition of misrepresentation.¹⁵⁶Typically, misleading representations by sellers are included within a larger concept of misleading conduct that, in turn, is made the subject of a provincial of-fence. In the Alberta statute,¹⁵⁷for example, misleading representations are defined to constitute an "unfair practice."¹⁵⁸The commission of an unfair practice is prohibited under the statute.¹⁵⁹A consumer who has suffered loss due to an unfair practice is entitled to bring a civil action for relief. The statute confers a broad discretion upon courts, in such claims, to award damages, including punitive damages, and to make orders for specific performance, restitution of property or money or rescission of the consumer transaction.¹⁶⁰In granting relief, the court is not constrained by the traditional equitable limitations on the granting of rescissionary decrees.

Page 362

The law of misrepresentation has been reformed in a more general way in England. The Misrepresentation Act¹⁶¹applies to any transaction entered into on the basis of a misrepresentation. There are four main features to this statute. First, the Act abolishes the doctrine of merger,¹⁶²

which holds that the repetition of a pre-contractual misrepresentation as a contractual term deprives the misrepresentee of the rescissionary remedy for misrepresentation. The statute provides¹⁶³that a contractual warranty will not preclude such relief. Second, the Act broadens slightly the action for compensatory damages for misrepresentation by shifting the burden to the representor to establish that "he had reasonable ground to believe and did believe up to the time the contract was made that the facts represented...