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This webinar is brought to you by Community Law School (Sarnia ‐ Lambton) Inc. , a nonprofit, Community Law School (Sarnia Lambton) Inc. , a nonprofit, registered charitable organization devoted to public legal education and community advocacy training. This webinar is facilitated by Your Legal Rights , a website of legal information for community workers and advocates who work with low income and disadvantaged communities in Ontario. Funding for this webinar was provided by the Law Foundation of Ontario as part of The Connecting Project and the Connecting Communities Consortium and the Connecting Communities Consortium. www.communitylawschool.org www.yourlegalrights.on.ca www.lawfoundation.on.ca Community Law School (Sarnia ‐ Lambton) Inc.

Please Note: The content of this webinar is based on law that was current on the date the webinar was recorded Your Legal Rights webinars contain recorded. Your Legal Rights webinars contain general legal information. They are not intended to be used as legal advice for a specific legal problem. be used as ega ad ce o a spec c ega p ob e For more information on how to find a lawyer or to contact your local community legal clinic visit: www.yourlegalrights.on.ca/find ‐ services Your Legal Rights is a project of CLEO and funded by the Law Foundation of Ontario.

About our presenter… Margaret Capes, B.A. (Hons.), LL.B., M.Ad.Ed, is Legal ( ) d d l Education Coordinator of Community Law School (Sarnia ‐ Lambton) Inc. She also acts as Review Counsel for ) Community Legal Services, as an adjunct professor in the clinical law program, and as faculty advisor for Pro Bono Students Canada and the Dispute Resolution Centre all at Students Canada and the Dispute Resolution Centre, all at the Faculty of Law, University of Western Ontario. She is the former Executive Director of Community Legal Assistance S Sarnia. i

Hot Topics in Consumer Protection: Telephone and Mail Agreements Agreements

Webinar Overview 1. What is a “remote agreement” under the Consumer Protection Act, 2002 ? 2. Rights under the Consumer Protection Act, 2002 a) Right to be Free from Unfair Business Practices b) Rights before entering into the Remote Agreement c) ) Rights Regarding the Remote Agreement Ri ht R di th R t A t d) Warranties and Quality of Work 3. Enforcement of Rights under the Consumer Protection Act, 2002 a) a) Rescission/Cancellation Rescission/Cancellation b) Complaint to the Ministry c) Civil Lawsuits Appendix A: Resources Appendix B: Detailed List of Unfair Practices under the Consumer Protection Act, 2002 2012, Community Law School (Sarnia-Lambton) Inc.

What is a Remote Agreement? • A remote agreement is: • An agreement made for good or services, the cost of which is over $50 An agreement made for good or services, the cost of which is over $50 (excluding the cost of borrowing); • where one party is in Ontario at the time of the transaction; and • where the buyer and the seller are not together at the time of the agreement (s. 20 (1) CPA; s. 2 CPA;s.44 CPA; s. 36 O.Reg. 17/05). ( ) ; ; ; g ) • Common examples of remote agreements are contracts made over the telephone, or through the mail. • Remote agreements are not “internet” agreements, as internet agreements are separately covered under the CPA. 2012, Community Law School (Sarnia-Lambton) Inc.

Right to be free from Unfair Practices Rights under Rights Rights Regarding Regarding Before Before the the Warranties Entering Consumer and Into the Protection Quality of Remote Act, 2002 Work Agreement Rights Regarding the Remote Agreement 2012, Community Law School (Sarnia-Lambton) Inc.

Right to be Free from Unfair Practices: What are “Unfair Practices”? What are Unfair Practices ? Under the Consumer Protection Act, 2002 (CPA), all agreements must be free from unfair practices on the part of the vendor unfair practices on the part of the vendor. What are “unfair practices”? The CPA specifically prohibits two types of unfair practices: Making a false, misleading, or deceptive representation (s. 14, CPA), and Making an unconscionable representation (s. 15, CPA). M ki i bl i ( 15 CPA) The CPA also prohibits a person from retaining custody or control of goods in order to force a consumer into renegotiating the terms of the agreement (s 16 CPA) force a consumer into renegotiating the terms of the agreement (s. 16, CPA). 2012, Community Law School (Sarnia-Lambton) Inc.

Right to be Free from Unfair Practices: What are “False, Misleading, or Deceptive R Representations? t ti ? False, misleading, and deceptive representations generally fall into four categories: Representations as to the quality, characteristics, condition, or “special” nature of the goods or services; The current or future availability of the goods or services; The need for the goods or service; and The cost, price advantage, or benefit of the good or service to the consumer. A detailed description of what constitutes “false misleading and deceptive A detailed description of what constitutes false, misleading, and deceptive representations” can be found in Appendix B. 2012, Community Law School (Sarnia-Lambton) Inc.

Right to be Free from Unfair Practices: What are “unconscionable representations” under the CPA? Some business practices are so egregious that they are deemed unconscionable under the CPA . They include: � Taking advantage of the disability, ignorance, language barriers, or illiteracy of the consumer; � Grossly overcharging for the good or service; � Grossly overcharging for the good or service; � Using excessively one-sided or otherwise inequitable contracts to the detriment of the consumer; � Obligations that the consumer has no reasonable probability of paying � Obligations that the consumer has no reasonable probability of paying in full; � Misleading statements of opinion that the consumer relies on or is likely to rely on to their detriment; and likely to rely on, to their detriment; and � Using pressure tactics to persuade the consumer to enter into the transaction. 2012, Community Law School (Sarnia-Lambton) Inc.

Example: Unfair Practices Nothing But Gutterballs N thi B t G tt b ll Ernie Swan is an elderly man who still lives in his own home in Fairview, Ontario. Ernie is generally in good health, although it is apparent after even a short conversation with him that Ernie suffers with some mental impairments caused by early onset dementia. When a salesperson from Gutterman Guys called one t l i i t d b l t d ti Wh l f G tt G ll d day to explain that they would be in the neighborhood and could inspect Ernie’s gutters at no charge, Ernie took him up on the inspection offer. When Gilbert Gutterman arrived the next day he didn’t look at the gutters but did ask for and got Ernie’s When Gilbert Gutterman arrived the next day, he didn t look at the gutters, but did ask for and got Ernie s okay to inspect the ventilation system. When Gilbert telephoned the following day, he convinced Ernie that not only did his gutters need cleaning, his ventilation system did as well. When Ernie asked several times Gilbert to repeat and explain the problems with his gutters Gilbert simply persisted in his assurance that needed cleaning, which Gutterman would do for the low price of $2,000. Ernie finally agreed, and Gilbert picked up the $2,000 cheque later that day. When Ernie’s daughter heard about this, she asked him to show her the contract for the cleaning services. Ernie told her that he never received a contract. A second inspection of both the gutters and the ventilation system by a different contractor revealed that neither actually needed cleaning. Did Gutternman engage in any unfair practices in this case? In what way(s)? Did Gutterman engage in any unconscionable representations? In what way(s)? 2012, Community Law School (Sarnia-Lambton) Inc.

Rights Before Entering into the Remote Agreement: Information to be Provided and Method of Delivery Buyers must be provided with certain information by sellers BEFORE the agreement is signed (s. 37(1), CPA; O.Reg. 17/05). This information can be provided orally or in writing, and the seller can refer the buyer to a preexisting publication (for example at a website or in a brochure) for this information (s. 37(2), CPA; O.Reg. 17/05). The buyer MUST be given the opportunity to accept or decline these terms, and the ability to correct errors, BEFORE the agreement is signed (s.38, CPA; O.Reg. 17/05). The information that must be disclosed is very specific and includes the following: The name of the supplier and, if different, the name under which the supplier carries on business; The telephone number of the supplier and, if the consumer is required to deal with the supplier at particular premises, the address of that premises; A fair and accurate description of the goods and services to be supplied to the consumer, including any technical requirements related to the use of the goods or services. 2012, Community Law School (Sarnia-Lambton) Inc.