A A A

3rd Session, 40th Legislature

This HTML version is provided for ease of use and is based on the bilingual version that was distributed in the Legislature after First Reading.

Bill 18

THE BUSINESS PRACTICES AMENDMENT ACT (IMPROVED CONSUMER PROTECTION AND ENFORCEMENT)


  Bilingual version (PDF) 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. B120 amended

1           The Business Practices Act is amended by this Act.

2           Section 1 is amended

(a) by adding the following definition:

"publish" means to make public by or through any media; (« publier »)

(b) in the definition "unfair business practice", by striking out "or 3" and substituting ", 3 or 3.1".

3(1)        Clause 2(1)(b) of the English version is amended by adding "or representation" at the end.

3(2)        Subsection 2(3) is amended by replacing the section heading with "Deemed unfair business practices".

3(3)        Subsection 2(3) is further amended by adding the following after clause (s):

(t) a false representation as to the purpose of a charge or proposed charge;

(u) a false representation or the use of exaggeration as to the benefits that are likely to flow to a consumer if the consumer helps the supplier to obtain new or potential customers.

4           Section 3 is replaced with the following:

Taking advantage, using undue pressure

3(1)        It is an unfair business practice for a supplier

(a) to take advantage of a consumer if the supplier knows or ought to have known that the consumer is not in a position to protect his or her own interests; or

(b) to subject a consumer to undue pressure to enter into a consumer transaction.

Deemed unfair business practices

3(2)        Without limiting the generality of subsection (1), it is deemed to be an unfair business practice within the meaning of that subsection when

(a) a supplier takes advantage of a consumer if the supplier knows or ought to have known that the consumer was unable to protect, or incapable of protecting, his or her own interests because of the consumer's physical or mental infirmity, illiteracy, age or inability to understand the character, nature or language of the consumer transaction, or any other matter related to the transaction; or

(b) the terms or conditions on which, or subject to which, the consumer entered into the consumer transaction are so adverse or so harsh to the consumer as to be inequitable.

Factors to consider

3(3)        In determining whether anything not described in subsection (2) is an unfair business practice within the meaning of subsection (1), all relevant circumstances shall be considered including, but not limited to, the following factors, if applicable:

(a) whether there is a reasonable probability of full payment of the total price by the consumer;

(b) whether the total price grossly exceeded the total price at which similar goods are readily obtainable in a similar transaction by like consumers.

Renegotiation of price, etc.

3.1         It is an unfair business practice for a supplier to use its possession of or control over a consumer's goods to pressure the consumer into renegotiating a term or condition of a consumer transaction.

5           Section 4 is amended by striking out "and 3" and substituting ", 3 and 3.1".

6           Section 8 is amended by striking out "or 3" and substituting ", 3 or 3.1".

7           Subsection 9(1) is amended by striking out "prints, publishes, distributes, broadcasts or telecasts" and substituting "publishes".

8           Clause 13(c) is amended by striking out "investigate" and substituting "receive, handle and mediate".

9           Clause 14(2) is amended by striking out "mediate or investigate" and substituting "handle or mediate".

10          The following is added after section 14:

Authority to inspect

14.1(1)     Subject to any conditions imposed by the director, where a complaint has been made or where the director believes it is necessary to determine whether a supplier is complying with this Act or the regulations, or an order made, or an assurance given, under this Act, a person authorized by the director (in this section and sections 14.2 and 14.3 referred to as an "inspector") may carry out any inspection, examination, audit or test reasonably required to

(a) determine whether the supplier is in compliance;

(b) verify the accuracy or completeness of a record or other information provided to the director or inspector; or

(c) perform any other duty or function that the director or inspector considers necessary or advisable in the administration or enforcement of this Act or the regulations.

Right of entry

14.1(2)     To perform a duty or function under subsection (1) (in this section and section 14.3 referred to as an "inspection"), the inspector may at any reasonable time, without a warrant, enter

(a) any business premises of a supplier; or

(b) any other premises or place where the inspector has reasonable grounds to believe that records or property relevant to the administration or enforcement of this Act are kept.

Entry into dwelling only with consent or warrant

14.1(3)     An inspector may not enter premises occupied as a private residence except with the consent of the owner or occupant or with the authority of a warrant obtained in accordance with section 14.3.

Identification to be shown

14.1(4)     An inspector must show his or her identification if requested to do so in the context of an inspection.

Assistance to inspector

14.1(5)     The supplier or the person in charge of the place of inspection or having custody or control of the relevant records or property must

(a) produce or make available to the inspector all records and property that the inspector requires for the inspection;

(b) provide any assistance or additional information, including personal information, that the inspector reasonably requires to carry out the inspection; and

(c) upon request, provide written answers to questions asked by the inspector.

Electronic records

14.1(6)     To inspect records that are maintained electronically at the place of inspection, the inspector may require the supplier or the person in charge of the place of inspection or having custody or control of the relevant records to produce the records in the form of a printout or to produce them in an electronically readable format.

Inspector may make copies

14.1(7)     The inspector may use equipment at the place of inspection to make copies of relevant records and may remove the copies from the place of inspection for further examination.

Inspector may remove records to make copies

14.1(8)     An inspector who is not able to make copies of records at the place of inspection may remove them from the place to make copies. The inspector must make the copies as soon as practicable and return the original records to the person or place from which they were removed.

Obstruction

14.1(9)     No person shall hinder, obstruct or interfere with an inspector conducting an inspection under this section.

Copies as evidence

14.2        A document certified by the director or an inspector to be a printout or copy of a record obtained under this Act

(a) is admissible in evidence without proof of the office or signature of the person purporting to have made the certificate; and

(b) has the same probative force as the original record.

Warrant to enter and inspect

14.3(1)     A justice, upon being satisfied by information on oath that

(a) an inspector has been refused entry to any premises or place to carry out an inspection; or

(b) there are reasonable grounds to believe that

(i) an inspector would be refused entry to any premises or place to carry out an inspection, or

(ii) if an inspector were to be refused entry to any premises or place to carry out an inspection, delaying the inspection in order to obtain a warrant on the basis of the refusal could be detrimental to the inspection;

may at any time issue a warrant authorizing an inspector or any other person named in the warrant to enter the premises or place and carry out an inspection.

Application without notice

14.3(2)     A warrant under this section may be issued upon application without notice.

11          Sections 15 and 16 are replaced with the following:

General authority to investigate

15          Subject to any conditions imposed by the director, a person authorized by the director may carry out any investigation reasonably required for the enforcement of this Act.

Warrant for search and seizure

16(1)       A justice, on being satisfied by information on oath that there are reasonable grounds to believe that

(a) an offence is being or has been committed; and

(b) there is in a building, vehicle, receptacle or place any thing that there are reasonable grounds to believe will afford evidence of an offence under this Act;

may at any time issue a warrant authorizing the person or persons named in the warrant, to enter and search the building, vehicle, receptacle or place for any such thing, and to seize it and as soon as practicable bring it before a justice, or report on it to a justice, to be dealt with according to law.

Application without notice

16(2)       A warrant under this section may be issued upon application without notice.

12(1)       Subsection 18(1) is replaced with the following:

Order to cease committing unfair business practice

18(1)       Where the director is satisfied that a supplier is committing an unfair business practice, the director may, after giving the supplier a reasonable opportunity to be heard,

(a) order the supplier to cease committing the practice;

(b) if a false, misleading or deceptive representation in respect of a consumer transaction has been made by the supplier in an advertisement, order the supplier to retract the representation or publish a correction of equal prominence to the original publication; and

(c) order the supplier to post the order in a prominent place in its business premises.

Order takes effect in 14 days

18(1.1)     Subject to subsection (3), an order takes effect 14 days after it is served on the supplier.

12(2)       Subsection 18(3) is amended by striking out "21 days" and substituting "14 days".

12(3)       Subsection 18(6) of the English version is amended by striking out "practices" and substituting "practice".

13(1)       Subsection 19(1) is amended in the part before clause (a)

(a) by striking out "believes, on reasonable and probable grounds," and substituting "is satisfied";

(b) in the English version by striking out "further believes on reasonable and probable grounds" and substituting "is satisfied"; and

(c) by striking out "with the minister's written approval and".

13(2)       Subsection 19(6) is amended by striking out "believes on reasonable and probable grounds" and substituting "is satisfied".

14(1)       Subsection 20(1) is amended

(a) in the part before clause (a),

(i) by striking out "believes, on reasonable and probable grounds," and substituting "is satisfied",

(ii) in the English version, by striking out "committing unfair business practices" and substituting "committing an unfair business practice",

(iii) by striking out ", with the minister's written approval,", and

(iv) in the English version, by striking out "any unfair business practices" and substituting "any unfair business practice";

(b) in clause (e), by striking out "investigation" and substituting "inspection"; and

(c) by adding the following after clause (f):

(f.1) to retract a false, misleading or deceptive representation made in an advertisement;

(f.2) to publish a correction of a false, misleading or deceptive representation made in an advertisement that is of equal prominence to the original publication;

14(2)       Subsection 20(3) is amended by striking out "30 days" and substituting "14 days".

14(3)       The following is added after subsection 20(6):

Director may issue order, apply to court

20(7)       For greater certainty, the director is not precluded from issuing an order under section 18, or applying to court under section 19 or 21, in respect of a supplier who fails to comply with the terms and conditions of an assurance under subsection (1) or who commits another unfair business practice.

15          Section 21 is replaced with the following:

Injunction

21          The director may apply to the court to restrain a supplier from committing or attempting to commit an unfair business practice, and the court may grant an injunction on the terms and conditions that it considers appropriate.

16(1)       Subsection 24(1) is amended in the part before clause (a)

(a) by striking out "believes on reasonable and probable grounds" and substituting "is satisfied";

(b) by striking out "section 3" and substituting "section 3 or 3.1"; and

(c) by striking out "and with the minister's written approval".

16(2)       Subsection 24(2) is amended by striking out "believes, on reasonable and probable grounds," and substituting "is satisfied".

17          Subsection 33(4) is repealed.

Coming into force

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

Explanatory Note

This Bill amends The Business Practices Act. It clarifies when a supplier takes advantage of a consumer and provides that it is an unfair business practice to subject the consumer to undue pressure. It is also an unfair business practice to pressure a consumer to renegotiate the terms of a transaction because the goods are under the supplier's possession or control. The list of examples of false representations or the use of exaggeration that are deemed to be unfair business practices is expanded.

A supplier may be ordered by the Director of Business Practices, or may enter into a voluntary agreement with the director, to correct or retract a false or misleading advertisement. A supplier may also be ordered to post a director's order in its business premises.

Other amendments include

  • permitting the director to act when only one unfair business practice has been, is being or may be committed;
  • permitting inspections of a supplier's business premises where the director believes it is necessary to determine whether a supplier is in compliance;
    • shortening the time period for appealing a director's order to 14 days;
    • removing the requirement to obtain the minister's written approval before the director can take enforcement measures, such as issuing a cease order or entering into a voluntary agreement with a supplier; and
    • modernizing the enforcement, investigation, search warrant, injunction and penalty provisions and making them consistent with legal developments.