On November 29, 2017, the Alberta government introduced Bill 31: A Better Deal for Consumers and Businesses Act (Bill 31), which proposes a number of amendments to the Fair Trading Act (Act). The Alberta government simultaneously issued a statement to explain and provide additional context for the amendments (Statement). The proposed changes are in response to a consultation held from July to November 2017, which included input on a new Consumer Bill of Rights, promoting fairness between consumers and businesses, and the regulation of high-cost credit.
If Bill 31 passes, related regulations will need to be drafted to detail many of the new requirements proposed by this bill. While Bill 31 could be passed relatively quickly, the Statement indicates that the related regulations will be developed and enacted throughout 2018.
This bulletin summarizes the key aspects of the proposed amendments in Bill 31.
NEW NAME, PREAMBLE AND CONSUMER BILL OF RIGHTS
If enacted, Bill 31 would change the name of the Act to the Consumer Protection Act and preface the Act with a preamble in order to better communicate the intent of the legislation. The Statement provides that the preamble is also intended to help the courts in interpreting the provisions of the Act, signalling that technical interpretations of the legislation that do not accord with its spirit will not be accepted.
Bill 31 also mandates Alberta’s minister of service (Minister) to establish and publicize a Consumer Bill of Rights (Bill of Rights), which would be the first of its kind in Canada. This Bill of Rights is intended to be a general guideline accessible to all Albertans to help consumers understand their rights and make well-informed decisions. Bill 31 specifies that the Bill of Rights will not automatically give rise to, nor add, any actionable rights for consumers. However, it will likely be an additional factor in determining whether there has been a violation of the Act.
Bill 31 adds a section to the Act regulating unilateral amendments to ongoing consumer transactions. Under the proposed amendment, a supplier is prohibited from changing a substantive term of an ongoing consumer transaction unless:
- The consumer expressly consented to the specific change not more than 120 days before the effective date of the change; or
- The ongoing consumer transaction provides that the supplier may make a unilateral change, and the supplier gives the consumer between 60 to 120 days’ advance notice of the specific change.
If advance notice is provided, the notice must include prescribed information about the change and give the consumer the option to cancel the ongoing consumer transaction without penalty. In the case of a change in cost to the consumer, the notice must also set out the total financial impact to the consumer.
A “substantive term” in an ongoing consumer transaction means any term relating to price, renewals or extensions of the term of the relevant agreement. The regulations may expand this definition.
Similar regimes restricting unilateral amendments already exist under the consumer protection legislation in Ontario and Quebec, although the timing of the advance notice required under Bill 31 is longer than what is required in the other two provinces. In addition, for certain types of consumer agreements in Ontario, the consumer is also given the option to retain the contract unchanged.
HIGH-COST CREDIT PRODUCTS
Bill 31 introduces a regime for “high-cost” credit, including new licensing requirements for high-cost credit grantors. High-cost credit is defined as a credit agreement, including a lease, that provides for a rate of 32 per cent or more, to be calculated in accordance with the accompanying regulations. Bill 31 further specifies that high-cost credit grantors may be required to use a prescribed form of agreement.
This proposed amendment follows on the heels of the recently enacted high-cost credit regime in Manitoba that applies to loans with specific characteristics, for example a loan of money or line of credit with an annual interest rate that exceeds 32 per cent (for more information, see our January 2016 Blakes Bulletin: “High-Cost Credit” Consumer Lenders Face New Laws in Manitoba). In addition, both Ontario and Quebec have recently proposed similar amendments to their consumer protection legislation to address high-cost credit products (for more information on the Quebec proposals, see our May 2017 Blakes Bulletin: Take Two: Quebec Introduces Bill 134 to Modernize the Consumer Protection Act).
These developments are in response to increased activity in the high-risk lending space, in particular as a result of the changes to the maximum cost of borrowing allowable for payday loans in many jurisdictions. However, as these new regimes impose requirements that are unique to each province, national lenders operating in this space will likely face increased operational and compliance management costs. If this trend continues, we will see the undoing of decades of cooperation to harmonize cost of credit disclosure laws for this subset of lenders.
MANDATORY ARBITRATION CLAUSES; ACCESS TO COURTS
Bill 31 would repeal section 16 of the Act, which provides that neither a consumer nor the regulator may maintain a court action if the consumer had agreed in writing to submit to arbitration and the arbitration agreement was approved by the Minister. Instead, Bill 31 provides that mandatory arbitration clauses in a consumer transaction or in an arbitration agreement with a consumer are void and unenforceable, unless: (a) the arbitration agreement was entered into after the dispute arose; or (b) the arbitration clause or agreement in a consumer transaction provides that the consumer has the right to decide after a dispute has arisen whether to arbitrate or take the matter to court.
Mandatory arbitration clauses are already prohibited under the consumer protection legislation in Ontario and Quebec, and many other jurisdictions grant consumers the right to bring an action. These clauses have been the subject of intense scrutiny in the U.S., although ultimately, a prohibition against consumer arbitration clauses introduced by the Consumer Financial Protection Bureau in the U.S. was rejected. In Canada, however, we expect to see more, not less, regulation of these types of clauses.
Under Bill 31, consumers would also be given additional rights to sue individuals and businesses for damage or loss suffered due to a contravention or failure to comply with the Act. The court may make a range of orders, including an award of damages or punitive damages, order specific performance or restitution of property or funds, and grant injunctions or rescission of the consumer transactions. Under the current Act, the court may only grant the above remedies in an action brought by Alberta’s director of fair trading (Director). As a result, this represents a new right for consumers and is intended to target the violation of consumer protection laws beyond unfair practices.
PUBLICIZING ENFORCEMENT ACTIONS
Bill 31 would expand the type of information that the Minister or Director may make publicly available. Under the current Act, the Minister may publicize information relating to an investigation and the Director is required to maintain a public record of undertakings, Director’s orders, court orders and injunctions. Under Bill 31, the Minister and Director may also publicize charges or convictions made under the Act, as well as the status of licences required pursuant to the Act and any actions taken by the Director under section 127 of the Act, which includes the Director’s ability to impose terms and conditions on a licence in some circumstances. These amendments increase the risk of reputational harm for a business whose name may be damaged even where ultimately no wrongdoing is found.
CAR SALES AND REPAIRS
Bill 31 adds a new section to the Act regarding automotive sales and repairs. Automotive business operators will be required to use a standard bill of sale and provide specified disclosures to consumers. Automotive business operators who engage in automotive repairs will be required to provide consumers with a warranty. They will also be required to provide consumers, on request, with estimates of the cost of proposed work, and will not be permitted to begin the work until authorized by the consumer. All of these requirements will be detailed in the accompanying regulations. Note that a “consumer” in this context means an individual who receives goods or services for personal use and also a small business that has a commercial fleet of five or fewer vehicles.
OTHER KEY CHANGES
- Ticket Sales and Resales: Bill 31 would prohibit the use of certain software (bots) to purchase tickets and would provide rights to consumers who purchase tickets from secondary sellers.
- Negative Reviews: Bill 31 would ensure suppliers cannot prevent a consumer from publishing a negative review of the business or transaction. As well, in an effort to prevent businesses from intimidating customers into withdrawing negative reviews, Bill 31 also specifies that an action brought against a consumer for posting a review will be dismissed unless the review was made in bad faith.
Bill 31 could pass quickly. However, given that many of the details required to implement the new proposals will be set out in the regulations, we will be watching for details on proposed draft regulations and relevant consultations throughout the course of 2018.