Bill 60, An Act to amend the Consumer Protection Act and other legislative provisions, was adopted by Québec’s National Assembly on December 5, 2009 and will come into effect on the date or dates set by the government, but no later than June 30, 2010.
Bill 60 introduces a new regulatory framework for three types of contracts in an attempt to curb perceived abuses: extended warranty contracts, contracts for the purchase of prepaid cards (gift cards), and contracts involving sequential performance for a service provided at a distance (such as cell phone contracts). In addition, there are a series of discrete amendments that affect the right to amend contracts, stipulate fixed damages for non-performance, and advertise prices.
Contracts for the Sale of an Extended Warranty
Consumers purchasing goods in Québec benefit from several levels of legal protection against manufacturing and design defects. The Civil Code of Québec imposes strict liability on manufacturers; manufacturers most often provide a contractual warranty (which may be an attempt to limit legal warranties); the Consumer Protection Act (CPA) contains extensive warranties respecting durability and fitness for purpose; and, if the consumer purchases goods with a credit card, there may be yet another level of protection offered through the card issuer.
The regulator seems to have determined that consumers are not aware of such protection and may be paying an unduly high cost for "extended warranty contracts" that may in fact afford little protection to them. Accordingly, the CPA has been amended to require merchants to inform consumers orally and in writing prior to even offering a contract of extended warranty of the existence and nature of the legal warranties available under the CPA and the existence and duration of any manufacturer’s warranty.
While the regulations governing such disclosure have not been published, these provisions would prohibit the sale of extended warranties by mail or otherwise than by direct sales, and appear to be designed to discourage the sale of such warranty products through the imposition of almost impossible disclosure obligations.
Consumer groups have identified what they consider to be several abuses arising from the sale of prepaid cards or gift cards. These perceived abuses include: (i) incompletely disclosed fees that must be paid for the issue or activation of a gift card, translating into hidden or onerous credit costs; (ii) the inability to obtain a refund of unused balances, which may lead to either overspending or a loss by the consumer of such unused balance; and (iii) undisclosed expiration periods, which may cause consumers to lose rights they thought they had.
To eliminate such perceived abuses, the new amendments to the CPA will require a merchant to provide information in writing about the conditions of use of prepaid cards and explain to purchasers how they may check the balance remaining on such cards. In addition, prepaid cards will not be permitted to have an expiration date unless the contract for purchase provides for an unlimited use of a service. And unless permitted by regulation, no charge may be assessed for the issue of a prepaid card. Merchants must also permit consumers to obtain a refund of unused balances on prepaid cards when the balance is lower than the amount or percentage to be set out in regulations.
Prepaid cards are defined under the CPA to include a "certificate, card or other medium of exchange that is paid in advance and allows the consumer to acquire goods or services from one or more merchants." It is not clear from this extremely broad definition whether prepaid cards would include many other products, such as travellers’ cheques, which could be seen to violate the new restrictions placed on such instruments of payment.
Contracts Involving Sequential Performance for Services Provided at a Distance
The unwieldy name given in the amendments to this new class of consumer contracts seems to have been designed to camouflage the expressed intent of the legislator to regulate cell phone and cable contracts. Direct legislation targeting these contracts exceeds the constitutional powers of a provincial government; however, it was clear that the provincial government was intent on legislating in this area and may have done so by choosing to regulate a wide range of contracts. Defining the scope of the category of contracts in such a broad manner has had two notable effects: (i) it may allow the provincial government to argue that it is only incidentally entering into federal jurisdiction in regulating such matters; and (ii) far more contracts than intended may be caught by these provisions.
The main purpose of the amendments is to avoid the perceived abuse in the cell phone and cable industry caused by long-term contracts by ensuring consumers have the right to terminate such contracts upon notice and without becoming subject to harsh penalty payments or costs related to resulting from the provision of equipment as a "premium." There was also a desire by the legislature to ensure more thorough disclosure as to the conditions and restrictions of use of the services provided under such contracts.
The amendments introduced under the CPA to such contracts comprehensive and include the following requirements, among others:
- clear disclosure of monthly rates, the cost of optional services, the total amount of monthly payments, the restrictions on the use of the services as well as any geographic limitations on use, any service offered as a premium and the economic inducements offered by the merchant, together with the total value of those economic inducements and the method by which the consumer may cancel or terminate the contract and the related costs;
- automatic renewal for a fixed term is prohibited if the contract’s initial terms is greater than 60 days, and consumers must be advised of the expiry date; and
the consumer may cancel the contract on notice and termination fees are restricted or curtailed. Since an increasing number of service contracts are now administered at a distance, such as bank accounts for example, it will be important for merchants to consider these amendments carefully and examine whether they impact their contracts. It may be that the legislator has caught by these provisions a wider range of contracts than anticipated, including ones beyond its legislative control, such as a bank contract for a certificate of deposit where the bank clearly imposes charges for cancellation of the contract prior to term and where automatic renewal provisions apply in the normal course.
Additional amendments to the CPA touch on the following matters:
- Advertising of price: in advertising that includes the price of goods, the price will now be required to emphasize the total price the consumer must pay for the goods (exclusive of taxes). The amendments to the CPA will therefore require merchants to include other fees and surcharges in the advertised price of goods. In addition, more emphasis must be placed on the total price of the goods than the components of such price. For example, if a bottle of soda costs $1.00, and there is a $0.05 deposit, with $0.15 tax, the advertised price must be $1.05 and such total price must be more prominent than the $1.00 cost of the soda itself or any or the other components of such total price (including, for example, a 20 per cent reduction in price offered during a promotional sale).These amendments will have an important impact on the advertising and promotion of consumer goods.
- Unilateral amendments: the unilateral amendment of a consumer contract will now be prohibited unless the contract allows such amendment, and the consumer is provided with 30 days’ notice in required form, during which period the consumer may rescind or cancel the contract without cost or penalty. The unilateral right to amend fixed-term contracts is also prohibited where the amendment affects an essential term of the contract, such as the nature or price of the goods or services. Equally limits are placed on the rights of merchants to unilaterally terminate contracts for a fixed term, requiring 60 days’ notice in the case of contracts for an indeterminate term.