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Third Session, Thirty-Seventh Legislature

This version is based on the printed bill that was distributed in the Legislature after First Reading.
It is not the official version.   If accuracy is critical, you can obtain a copy of the printed bill from Statutory Publications.

Bill 12

THE CONSUMER PROTECTION AMENDMENT ACT


Explanatory Note

(Assented to                                         )

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

C.C.S.M. c. C200 amended

1           The Consumer Protection Act is amended by this Act.

2           Subsection 94(1) is amended

(a) in clause (a),

(i) by striking out "$3,000." and substituting "$10,000.", and

(ii) by striking out "$10,000." and substituting "$50,000."; and

(b) in clause (b),

(i) by striking out "$10,000." and substituting "$25,000.", and

(ii) by striking out "$25,000." and substituting "$100,000.".

3           Section 98 is replaced with the following:

Prohibited collections

98(1)       No person shall, directly or indirectly, in respect of a debt arising from a transaction to which this Act applies,

(a) collect or attempt to collect from the debtor more than the amount of the debt and any fees or charges allowed by statute or regulation;

(b) collect or attempt to collect any fees or charges incurred by a collection agent or by the creditor in employing a collection agent; or

(c) collect or attempt to collect payment of the debt from a person other than the debtor.

Prohibited collection practices

98(2)       No person shall, for the purpose of collecting or attempting to collect payment of a debt arising from a transaction to which this Act applies, do any of the following things, directly or indirectly:

(a) threaten or state an intention to do anything

(i) for which the person has no written authority from the creditor, or

(ii) for which there is no lawful authority;

(b) commence a legal proceeding before notifying the debtor of the intention to commence it;

(c) recommend to the creditor that a legal proceeding be commenced before notifying the debtor of the proposed recommendation;

(d) use, without lawful authority, any summons, notice, demand or other document that suggests or implies a connection with any court within or outside of Canada;

(e) give any person, directly or indirectly, by implication or otherwise, any false or misleading information;

(f) misrepresent

(i) the purpose of a communication,

(ii) the identity of a person,

(iii) the authority of a person to collect an amount or to seize goods, or

(iv) the effect of doing or failing to do anything in response to a demand or request;

(g) communicate or attempt to communicate with the debtor, by any means, without indicating the name of the creditor, the amount owing, and the identity and authority of the person making the communication;

(h) communicate or attempt to communicate with a person in a manner that results in a communication charge to the person;

(i) communicate or attempt to communicate with a person in a manner or with a frequency that constitutes harassment, such as

(i) using threatening, profane, intimidating or coercive language, or

(ii) using excessive or unreasonable pressure;

(j) publish or threaten to publish the debtor's failure to pay;

(k) contact or attempt to contact a member of the debtor's family or household, or a friend, relative or acquaintance of the debtor, for a purpose other than to obtain the debtor's address or telephone number, unless

(i) the person to be contacted has guaranteed to pay the debt and is being contacted about the guarantee, or

(ii) the person making the contact has been requested by the debtor to discuss the debt with the person to be contacted;

(l) contact the debtor's employer, except

(i) once, for the sole purpose of confirming the debtor's employment, business title and business address, or

(ii) as authorized by the debtor in writing;

(m) contact the debtor at the debtor's place of employment, except

(i) once, for the sole purpose of obtaining the debtor's home address or phone number, or

(ii) as authorized by the debtor in writing;

(n) except at the request of the person to be contacted, contact or attempt to contact the debtor, any member of the debtor's family or household, any relative, friend or acquaintance of the debtor, or the debtor's employer or surety, in person or by telephone

(i) on a Sunday before 1:00 p.m. or after 5:00 p.m. local time to the person contacted,

(ii) on a statutory holiday, or

(iii) on any other day before 7:00 a.m. or after 9:00 p.m. local time to the person contacted;

(o) communicate or attempt to communicate with the debtor other than in writing after the debtor has notified the creditor or the collection agent or collector attempting to collect the debt, in writing, that communications must be in writing and has provided an address to which the written communications may be sent;

(p) communicate or attempt to communicate with the debtor other than through the debtor's lawyer after the debtor has notified the person, in writing, that communications must be through the lawyer and has provided the lawyer's address;

(q) as a collection agent or a collector, communicate or attempt to communicate with a debtor who has notified the creditor by registered mail that the debt is in dispute and that the creditor should take the matter to court;

(r) if the person thought to be the debtor has advised the person demanding payment that he or she is not the debtor, continue to communicate with the person before taking all reasonable precautions to ensure that the person is the debtor;

(s) authorize a collection agent to collect the debt or seize goods while another collection agent is authorized to collect the debt or seize the goods;

(t) without the court's approval, seize or repossess any goods unless the debtor or the debtor's spouse or agent, or an adult having possession and use of the goods with the debtor's consent, is present at the time and aware of the seizure or repossession;

(u) seize or repossess, or attempt to seize or repossess, any goods other than goods that

(i) constitute collateral for the debt, or

(ii) may be seized under a judgment obtained by the creditor.

Notice before collection agent or collector may act

98(3)       No collection agent or collector shall collect or attempt to collect payment of a debt before the debtor has been notified in writing, or an attempt has been made to notify the debtor in writing, of the name of the creditor, the amount of the debt and the identity and authority of the agent or collector to collect the debt.

Initial contact by collection agent or collector

98(4)       The collection agent or collector must not initiate any further contact with the debtor until five days after the notice referred to in subsection (3) has been sent to the debtor.  If the debtor claims not to have received the notice, the agent or collector must send it to the debtor at an address provided by the debtor.

No action on assignment without notice

98(5)       No collection agent shall, as plaintiff, commence or continue an action for the recovery of a debt unless the debt has been assigned to the collection agent in good faith and for valuable consideration, and the debtor has been given written notice of the assignment.

4           Subsection 100(1) is amended by striking out "98(h)" and substituting "98(2)(t)".

5           Section 103 is replaced with the following:

Prohibited collection fees

103(1)      No collection agent shall obtain any benefit, either directly or indirectly, for acting as a collection agent, other than a collection fee that

(a) is charged to the creditor or debtor under an agreement with the person charged; and

(b) does not exceed the limit prescribed under this or any other Act.

No double collection

103(2)      No collection agent who receives a fee for acting for a debtor shall charge or receive a fee from a creditor in respect of any amount collected or received from the debtor for the benefit of the creditor.

6           Subsection 129(1) is amended by striking out everything after "cancel the agreement" and substituting "at any time before receiving the prescribed information in writing or within seven days  after receiving it."

7(1)        Subsection 133(1) is amended

(a) by replacing clause (a) with the following:

(a) the agreement is void from the beginning;

(a.1) the cancellation also operates to cancel

(i) any related consumer transaction,

(ii) any guarantee of the buyer's obligations under the agreement or under any related consumer transaction, and

(iii) any security given for the buyer's or guarantor's obligations; and

(b) in clause (b), by striking out "30" and substituting "15".

7(2)        Clause 133(3)(b) is amended by striking out "30" and substituting "15".

7(3)        The following is added after subsection 133(6):

Buyer's right of action

133(7)      If a seller fails to refund an amount as required by clause (1)(b), the amount is recoverable as a debt owing by the seller to the buyer.

Seller's right of action

133(8)      A breach of the buyer's obligation under clause (3)(b) is actionable by the seller as a breach of a statutory duty.

8(1)        Subsection 134(1) is amended

(a) in clause (a), by striking out "30-day" and substituting "15-day"; and

(b) in clause (b), by striking out "30" and substituting "15".

8(2)        Subsection 134(2) is replaced with the following:

Credit card issuer must reverse or cancel charges

134(2)      If the request satisfies prescribed requirements, the credit card issuer must

(a) acknowledge receipt of the request within 30 days after receiving it; and

(b) cancel or reverse the credit card charge, and any associated interest or other charges, no later than the earlier of

(i) the issue date of the second statement of account to be issued after the request was received, and

(ii) the 90th day after the day the request was received.

Method of giving request

134(2.1)    A request under subsection (1) may be given to the credit card issuer by personal service, registered mail, courier, fax or e-mail, or by any other method that provides the buyer with confirmation of delivery of the request.

9           The following is added after section 135:

PART XVII

NEGATIVE OPTION MARKETING

Negative option marketing

136(1)      When, in order to sell goods or services at a retail sale, a person

(a) supplies goods or services, or enhancements to an existing service, to a consumer who did not request them or agree to purchase them; and

(b) requires or purports to require the consumer to pay for the goods or services unless the consumer returns the goods or informs the supplier that he or she does not want them;

the goods or services are supplied under a negative option marketing scheme, unless

(c) the consumer knows or ought to know that the goods or services are intended for another person; or

(d) they are being supplied under a written contract which requires or permits the person to periodically supply the goods or services without further solicitation.

Automatic renewals of written contracts

136(2)      The reference to "written contract" in clause (1)(d) does not include a contract that was renewed without the express request of the consumer to renew it, unless the contract or its renewal meets prescribed requirements.

Regulations

136(3)      The minister may make regulations respecting the renewal of contracts for the purposes of this section.

No implied agreement

137         For the purposes of this Part,

(a) a consumer's failure to respond to a notice of a proposed delivery of goods or services must not be construed as a request for them or an agreement to purchase them; and

(b) a consumer's use or consumption of goods or services, or failure to reject or return them, must not be construed as an agreement to purchase them.

Consumer not liable

138         A consumer who receives goods or services supplied under a negative option marketing scheme

(a) is not liable to pay for them; and

(b) in the case of goods, has no legal obligation in respect of their use, loss or disposal.

Coming into force

10          This Act comes into force on the day it receives royal assent.

Explanatory Note

This Bill amends The Consumer Protection Act in the following ways:

  • It increases fines for offences under the Act.
  • It amends the provisions respecting collection practices and Internet agreements for consistency with similar laws in other provinces.
  • It adds a provision to limit a consumer's liability for goods and services supplied through negative option marketing.