Fair Trading Act Becomes the Consumer Protection Act and Other Key Amendments

Bill 31: A Better Deal for Consumers and Businesses Act passed First Reading on November 29, 2017, in the Alberta Legislature and received Royal Assent very quickly thereafter on December 15, 2017. Bill 31 amends the Fair Trading Act and changes its name to the Consumer Protection Act (Act). Certain sections of the Act have already come into force while others await proclamation.

The following key amendments are in force in Alberta:

• Plain language preamble: The new plain language preamble sets forth certain guiding principles which are likely to be used to assist with future interpretations of the Act.
• Consumer Bill of Rights: The Minister of Service Alberta has been delegated the obligation to establish and publish a "Consumer Bill of Rights" which will highlight consumer rights and protections under the Act likely in a less legalistic format. The Bill of Rights will not in itself result in any legally enforceable rights, give rise to any proceedings or create any offences under the Act.
• End to mandatory arbitration clauses: An arbitration clause in a contract in a consumer transaction or with a consumer will only be enforceable if it was agreed to after the dispute arose, or if the underlying agreement allows for the consumer to decide between arbitration and the courts after the dispute arises.
• Reviews and complaints: Businesses cannot contractually prevent consumers from posting reviews of the business or a transaction. The Act specifically removes any action against a person for compensation, damages or any other remedy for loss or damage from the publication of a negative review or communication in relation to any supplier or any other person to whom the Act applies unless the review or publication is malicious, vexatious or harassing or otherwise made in bad faith.
• Remedies: Consumers who have entered into a consumer transaction and have suffered damage or loss due to a contravention of, or a failure to comply with, the Act or the regulations have a right to commence a court action against the supplier, or any principal, director, manager, employee or agent who engaged in or acquiesced in the contravention or failure to comply that caused the damage or loss. The court can award damages for damage or loss suffered, award punitive or exemplary damages, make an order for specific performance or the restitution of property or funds or rescission of the transaction, grant an injunction or make any other relief it considers proper.
• Duty to mitigate: If a consumer enters into a consumer transaction and suffers damage or loss due to a contravention of or a failure to comply with the Act or regulations, the new provisions impose a specific obligation on the courts to assess whether the consumer made a reasonable effort to minimize any damage resulting from the contravention or failure to comply with the Act and to resolve the dispute with the supplier.
• Regulations: The Minister now may make regulations defining any word or term used but not defined in the Act or part of the Act. In addition, the Minister has been delegated the right to make significant regulations in respect to many sections of the Act. As of the date of this article, no new regulations have been proposed.

The following additional key amendments are not yet in force as at the date of this article:

• Unfair practices: In respect to ongoing consumer transactions, the failure to provide "prominent and full" disclosure of the details of the transaction including the duration, changes in price, renewals, extensions or amendments will be considered unfair practice and the current unfair practices will apply to ongoing transactions.
• Further regulation to high-cost credit lenders: Businesses lending money at an interest rate of 32 percent or higher will need to be licensed under the Act, need to use prescribed form contracts or contract terms, and will need to have sufficient signage related to the credit being provided and risks of relying on such credit. This new provision also applies to leases but not payday loans.
• End to unilateral contract amendment: Suppliers will be restricted from amending substantive terms of contracts—price, renewal, extensions, etc.—unless within the applicable time frames consumers consent or are provided with advance notice and given the right to cancel without penalty.
• Licences: Two new provisions have been added whereby the Minister can refuse to issue, renew, cancel or suspend a licence or impose additional terms on a licencee if such licencee fails to repay the fund established under the Act which was used to payout claims against a licencee or such licencee fails to pay a levy of assessment in respect of such fund.

Additional amendments not yet in force affect veterinary services, car sales and repairs, and ticket sales and resales.

The regulation development stage has now begun.

This article was also authored by Kathryn Shaw.