Under the Consumer Protection Act, 2002 (the “Act”), unfair practices include false, misleading, or deceptive representations made by a supplier in the course of selling or promoting a product or service. The Act prohibits suppliers from engaging in unfair practices and provides consumers with various remedies for violations of the Act.
Section 14(1) of the Act defines an unfair practice as any practice that, among other things, is contrary to the rules established by the Act, or any other law that regulates business practices, or that is unconscionable. Unconscionable practices are those that exploit consumers’ weaknesses or lack of knowledge, are grossly unfair or one-sided, or are otherwise unacceptable according to community standards of justice and honesty.
In Sankar v. Bell Mobility Inc., the Ontario Court of Appeal noted that the intention of the unfair practices section of the Act is to “police against misleading or unconscionable practices that induce the consumer to enter into an agreement.” The Court held that a cause of action based on the unfair practices section of the Act would not succeed if no deceptive or unconscionable representation had occurred.
Similarly, in Tecton Construction Inc. v. Yeung, the Court held that a statement is false, misleading, or deceptive if it is so at the time it is made, and does not require reliance on the representation by the consumer.
The Act provides consumers with various remedies for violations of the unfair practices provisions, including the right to rescind an agreement, the right to a refund, and the right to sue for damages. In 1515471 Ontario Inc. v. Davidson, the Ontario Divisional Court held that the remedy of rescission was appropriate where the appellant had made a deceptive representation in promising to provide a bill of sale, which it did not provide.
In Ontario (Ministry of Government and Consumer Services) v. Ivan’s Electric Ltd., the Court held that the inclusion of a cancellation provision in a direct agreement would be an unfair practice by making a false, misleading, or deceptive representation. The Court also held that the use of different company names at the same time would be an unfair practice likely to deceive the consumer.
In Goyal v. Niagara College of Applied Arts and Technology, the Court considered a proposed class action alleging a breach of unfair practices under the Act, alleging misrepresentation by the college that a general arts and science program would qualify for a work permit under Immigration Canada’s post-graduate work permit program.
In Rebuck v. Ford Motor Co., a class action was certified for claims respecting, inter alia, alleged breach of the unfair practices regime under the Act.
In Bernstein v. Peoples Trust Co., the Ontario Superior Court of Justice found that the defendant had committed unfair practices under the Act in respect of its single-load prepaid cards.
In Duncan v. Ontario Home Services Inc., the Court found that a representative of the defendant engaged in unfair practices, and the agreement was rescinded on the basis of the unfair practices provisions of the Act.
Finally, under section 14(2)(2) of the Act, a supplier engages in an unfair practice by making a false, misleading, or deceptive representation, whether it is made orally, visually, or in writing. In Arabpour (c.o.b. CIR Electric) v. Forrest, the Court concluded that the evidence did not support that Arabpour misrepresented himself as a licensed electrical contractor or licensed electrician.
In Polito v. 1201553 Ontario Ltd. (c.o.b. Tri-Bear Construction), the trial judge concluded that the agreement for the construction of a sunroom was void for non-compliance with the Act, as the agreement did not contain required information such as dates of delivery, commencement of performance and completion of the construction. This failure to disclose material facts was an unfair practice on the part of the supplier, and the customer was entitled to rescind the contract. Therefore, suppliers must ensure that they provide consumers with all the material facts necessary for them to make an informed decision about a product or service to avoid engaging in an unfair practice under the Act.
In summary, the Ontario Consumer Protection Act prohibits unfair practices that include making false, misleading, or deceptive representations to consumers. Section 14(2) provides an exhaustive list of practices that constitute unfair practices, and section 18 allows consumers to seek remedies for unfair practices. Case law, such as Sankar v. Bell Mobility Inc., Tecton Construction Inc. v. Yeung, and Ontario (Ministry of Government and Consumer Services) v. Ivan’s Electric Ltd., provide guidance on how the courts interpret and apply the Act’s provisions. The Act has been used in various cases, including class actions, where consumers have sought remedies for unfair practices committed by businesses.