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The Consumer Protection Amendment Act (Negative Option Marketing and Enhanced Remedies)

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If you need an official copy, use the bilingual (PDF) version.

S.M. 2010, c. 31

Bill 34, 4th Session, 39th Legislature

The Consumer Protection Amendment Act (Negative Option Marketing and Enhanced Remedies)

(Assented to June 17, 2010)

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           In the following provisions, "clause 97(d)" is struck out and "clause 97(1)(d)" is substituted:

(a) subsection 59(1);

(b) clause 60(1)(k).

3           Section 94 is replaced with the following:

Offence

94(1)       A person who contravenes or fails to comply with a provision of this Act or the regulations is guilty of an offence, and is liable on summary conviction to a fine of not more than

(a) $300,000; or

(b) three times the amount obtained by the defendant as a result of the offence;

whichever is greater, or to imprisonment for not more than three years, or both.

Restitution

94(2)       If a person is convicted of an offence under subsection (1), the court must, on the application of the Minister of Justice and Attorney General or of a person affected by the offence or their representative,

(a) consider whether the defendant should pay restitution to an affected person for loss of or damage to property suffered as a result of the commission of the offence; and

(b) if the court considers an order to be just in the circumstances, order the defendant to pay an amount as restitution if the amount is readily ascertainable.

Order filed in court

94(3)       If an amount is ordered to be paid as restitution under subsection (2), the applicant may file the order in the court, and on being filed the order may be enforced in the same manner as a judgment of the court.

Person must pay restitution ordered

94(4)       Every person who is ordered to pay restitution under subsection (2) must make the payment in accordance with the order.

4           Section 97 is amended

(a) by renumbering it as subsection 97(1) and adding the following after clause (ee):

(ee.1) for the purpose of Part XXI (Negative Option Marketing),

(i) respecting what constitutes a material change in goods or services supplied to a consumer on a periodic basis,

(ii) respecting Internet negative option marketing;

(b) by adding the following as subsection 97(2):

Regulations about Internet negative option marketing

97(2)       Without limiting clause (1)(ee.1), a regulation made under that clause may do one or more of the following:

(a) designate another jurisdiction as a reciprocating jurisdiction if, in the opinion of the Lieutenant Governor in Council, it has similar law for the regulation of Internet negative option marketing;

(b) authorize the minister, on behalf of the government, to enter into an agreement with the government of a reciprocating jurisdiction respecting the application, administration or enforcement of Part XXI or the law of that jurisdiction in respect of Internet negative option marketing;

(c) in accordance with any agreement made under clause (b), specify which law applies or does not apply when both Part XXI and the law of the reciprocating jurisdiction purport to apply to Internet negative option marketing;

(d) extend, modify or limit the application of any provision of Part XXI in relation to Internet negative option marketing.

5           The following is added after section 173:

PART XXI

NEGATIVE OPTION MARKETING

DEFINITIONS

Definitions

174(1)      The following definitions apply in this Part.

"negative option marketing" means, subject to subsection (2), a practice in which a supplier

(a) provides goods or services to a consumer — including an enhancement to a service that the consumer is already receiving — that the consumer did not request; and

(b) requires the consumer to pay for the goods or services unless the consumer informs the supplier that the consumer does not want them. (« commercialisation par abonnement par défaut »)

"supplier" means a person who, in the course of the person's business, provides goods or services to consumers. (« fournisseur »)

When negative option marketing does not occur

174(2)      Negative option marketing does not occur when

(a) goods or services are supplied to a consumer under a written contract that provides for periodic supply without further solicitation, but only if the contract sets out — prominently, and in a form and using language that is clear and understandable — that the goods or services will be supplied periodically without further solicitation;

(b) there is a change to periodically supplied goods or services, if the change is not a material change under section 178; or

(c) the consumer knows or ought to know that the goods or services were intended for delivery to someone else.

Request not inferred

174(3)      For the purpose of the definition "negative option marketing", a request to buy goods or services must not be inferred solely from the passage of time or from inaction on the consumer's part, or from the consumer's use of or payment for the goods or services.

OBLIGATIONS AND RIGHTS

Negative option marketing prohibited

175         No supplier shall supply goods or services to a consumer using negative option marketing.

No consumer liability

176(1)      A consumer is not liable to pay for any goods or services received under negative option marketing.

No consumer obligation re use, etc.

176(2)      A consumer has no legal obligation or liability respecting the use, loss or disposal of goods received under negative option marketing.

Consumer's remedy: refund

177(1)      A consumer who pays for goods or services supplied using negative option marketing may demand a refund from the supplier within one year after making the payment, as long as the consumer did not expressly acknowledge to the supplier in writing his or her intention to accept the goods or services.

Supplier must refund

177(2)      A supplier who receives a demand for a refund under subsection (1) must make the refund within 30 days after receiving the demand.

MATERIAL CHANGE IN PERIODIC SUPPLY OF GOODS OR SERVICES

Material change deemed negative option marketing

178(1)      If there is a material change in goods or services supplied to a consumer on a periodic basis, the goods or services are deemed to be supplied using negative option marketing from the time of the material change, unless the supplier can establish that the consumer expressly consented to the change.

Establishing consent

178(2)      A supplier may rely on a consumer's consent to a material change if it is made in a way that permits the supplier to produce evidence to establish the consent.

When consent not established

178(3)      A supplier does not establish a consumer's consent by giving the consumer a notice to the effect that the supplier will supply the materially changed goods or services unless the consumer instructs the supplier not to do so.

"Material change" described

178(4)      Subject to the regulations, a change or a series of changes is a material change under this section if it is of such a nature or quality that it could reasonably be expected to influence a reasonable person's decision as to whether to agree to the supply of the goods or services.

APPLICATION OF THIS PART

Application of this Part

179         This Part applies to negative option marketing if

(a) the supplier or consumer is a resident of Manitoba; or

(b) the goods or services are received in Manitoba or supplied from Manitoba.

Coming into force

6           This Act comes into force 90 days after the day it receives royal assent.