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The Consumer Protection Amendment Act (Home Improvement Contracts)

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S.M. 2015, c. 8

Bill 14, 4th Session, 40th Legislature

The Consumer Protection Amendment Act (Home Improvement Contracts)

(Assented to June 30, 2015)

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           The following is added after subsection 59(2):

Direct sellers re home improvement services

59(2.1)     Subject to the regulations, a direct seller who sells home improvement services as defined in section 261 of Part XXVII (Home Improvement Contracts) must also comply with the requirements under that Part.

3           Section 97.1 is amended by striking out "minister" and substituting "Lieutenant Governor in Council".

4           The following is added as Part XXVII:

PART XXVII

HOME IMPROVEMENT CONTRACTS

INTERPRETATION AND APPLICATION

Definitions

261(1)      The following definitions apply in this Part.

"contractor" means a person who carries on the business of providing home improvement services to consumers or causes them to be provided but does not include a subcontractor. (« entrepreneur »)

"home" means

(a) a residential dwelling, including, but not limited to, a condominium unit or apartment;

(b) the land on which the dwelling is situated; and

(c) a garage or other structure located on that land. (« domicile »)

"home improvement contract" means an agreement to provide home improvement services entered into between a consumer and a contractor. (« contrat d'améliorations domiciliaires »)

"home improvement project" means one or more home improvement services provided under a home improvement contract. (« travaux contractés »)

"home improvement services" means, subject to subsection (2), renovating, altering, repairing, adding to or improving an existing home primarily for a consumer's personal, family or household purpose and includes, but is not limited to,

(a) renovating, altering, repairing, adding to or improving

(i) doors, windows or exterior cladding,

(ii) roofs, shingles, eavestroughs, downspouts, soffits, fascia, awnings or insulation,

(iii) kitchens, bathrooms, recreation rooms, basements or other interior spaces,

(iv) electrical, plumbing, heating, ventilation, vacuum or air conditioning delivery and distribution systems,

(v) chimneys or chimney liners,

(vi) home audio or theatre systems,

(vii) foundations, patios, garage pads, driveways, walkways or paving stones,

(viii) sunrooms, decks or gazebos,

(ix) retaining walls or fences,

(x) septic tanks and disposal fields or other wastewater management systems,

(xi) landscaping, and

(xii) any other prescribed item, structure, component, system or part of an existing home; and

(b) constructing a new garage or other structure on the same land as the home. (« services d'améliorations domiciliaires »)

Interpretation of "home improvement services"

261(2)      The definition "home improvement services" does not include

(a) installing or repairing furnaces, hot water tanks, heaters, air conditioning units, appliances, plumbing fixtures, tub surrounds or hot tubs unless the item is installed or repaired as part of a home improvement project; or

(b) a prescribed service in relation to a prescribed item, structure, component, system or part of an existing home.

Application of this Part

262(1)      This Part applies to one or more home improvement services when the total or estimated amount to be charged to a consumer by a contractor is more than the prescribed amount or, if no amount is prescribed, $500.

Non-application

262(2)      This Part does not apply to

(a) the construction of a new home;

(b) home improvement services provided primarily for the business purposes of the owner or occupier of a home; or

(c) an agreement to provide home improvement services between a general contractor and a subcontractor.

CONTRACT REQUIREMENTS

Home improvement contract

263(1)      A contractor must ensure that every contract for home improvement services to which this Part applies and that the contractor enters into meets the requirements of this section.

Contract must be in writing

263(2)      A home improvement contract must be in writing.

Required contents for all contracts

263(3)      A home improvement contract must include the following information:

Consumer and contractor

1.

The consumer's name and contact information and the contractor's name and contact information.

2.

A statement about whether or not the contractor has workers compensation coverage and insurance coverage.

Project

3.

Details of the scope of the home improvement project, including, if applicable, a list of the home improvement services to be provided.

4.

A description of the type or grade of materials or goods to be used.

5.

A list of each required permit and the person who is responsible for obtaining it.

6.

Details of any home improvement services, materials or goods to be provided by the consumer.

Cost

7.

The amount to be charged to the consumer for the home improvement project, described as follows:

(a) for a fixed-price contract, the total price,

(b) for a fixed-price contract with a contingency allowance,

(i) the fixed price, and

(ii) the contingency allowance, expressed as either a fixed dollar amount or a percentage of the fixed price,

(c) for a cost-plus contract,

(i) the estimated cost of the materials, goods, labour and any other costs to be incurred,

(ii) the administrative or management fee, expressed as either a fixed dollar amount or a percentage of the estimated or actual cost of the materials, goods, labour and any other costs to be incurred, and

(iii) if agreed to by the consumer and contractor, the maximum amount that the total cost cannot exceed,

(d) for a prescribed type of contract, the amount as described in accordance with the regulations.

8.

The required deposit or down payment amount, if any, and, if applicable, the conditions for its refund.

9.

If applicable, the schedule of progress payments to be made by the consumer.

Dates

10.

The start and end dates or range of dates for the home improvement project and the estimated duration of the project.

Other information

11.

Any other information required by the regulations.

Dated and signed

263(4)      A home improvement contract must be dated and signed by the consumer and the contractor.

Clear and understandable

263(5)      The contents of the home improvement contract must be presented in a clear, understandable and prominent manner and in accordance with any guidelines about form and presentation issued by the director and with the regulations.

Other terms may be included

263(6)      A home improvement contract may include terms in respect of matters in addition to those set out in this section.

Copy must be provided to consumer

264(1)      A contractor who enters into a home improvement contract with a consumer must provide a copy of the signed contract to the consumer before the work begins or within 10 days after the consumer signs the contract, whichever occurs first.

Contract with direct seller

264(2)      Despite subsection (1), a contractor who is also a direct seller must provide a copy of the signed home improvement contract to the consumer at the time the contract is entered into.

Consumer rights pamphlet

265         If required by the regulations, a contractor must

(a) provide to the consumer a copy of the Consumer Protection Office's pamphlet about the consumer's rights and responsibilities under The Consumer Protection Act, The Business Practices Act and The Builders' Liens Act before entering into a home improvement contract; and

(b) include a statement in the home improvement contract about whether and, if so, when the pamphlet was provided to the consumer.

Changes to contract after it is signed

266         Any change to the terms of a home improvement contract — including any change to the scope of the home improvement project or the home improvement services to be provided — must be authorized by the consumer and the contractor in accordance with the regulations.

Additional requirements may apply to contracts

267(1)      Subject to the regulations,

(a) a contractor who is also a direct seller must comply with the requirements under Part VII (Direct Sellers) and Part X (Licensing); and

(b) a home improvement contract that meets the criteria of any other type of contract to which this Act applies must also comply with the requirements for those contracts.

Remote surveillance systems

267(2)      This Part does not apply to the installation of remote surveillance systems. Instead, Part XXII (Distance Communication Services Contracts) applies to those systems.

Rights in addition to any other rights

268         The rights under this Part are in addition to and do not affect any other rights or remedies available under the contract or at law.

Effect of non-compliance

269         A home improvement contract that fails to comply with the requirements of this Part is not invalid solely because of the non-compliance.

REGULATIONS

Regulations

270(1)      The Lieutenant Governor in Council may make regulations

(a) respecting information and terms to be included in a home improvement contract, and prescribing what must appear on the first page or at the beginning of the contract and requiring the use of specified fonts or font sizes;

(b) requiring the Consumer Protection Office pamphlet referred to in section 265 to be provided and prescribing how and when it is to be provided to consumers;

(c) for the purpose of section 266, respecting authorizations for changes to the terms of a home improvement contract;

(d) for the purpose of subsection 267(1), exempting from the application of any provision of this Act contracts that meet the criteria for more than one type of contract to which this Act applies or modifying or limiting any requirements under this Act in respect of such contracts;

(e) respecting recordkeeping by home improvement contractors;

(f) modifying or limiting the requirements of this Part or the regulations for classes of contractors, home improvement contracts or home improvement services;

(g) exempting classes of contractors, home improvement contracts or home improvement services from the application of this Part or any provision of this Part or the regulations, and attaching conditions to the exemption;

(h) prescribing or specifying anything referred to in this Part as being prescribed or specified;

(i) respecting any other matter the Lieutenant Governor in Council considers necessary or advisable for the administration of this Part.

Scope and application of regulation

270(2)      A regulation under this Part may be general or particular in its application, may establish classes and apply differently to different classes, and may apply to the whole or any part of the province.

Transitional

5           Part XXVII (Home Improvement Contracts) does not apply to home improvement services that were provided under a contract that was entered into before the coming into force of this section.

Consequential amendment, S.M. 2014, c. 28 (unproclaimed)

6           The following is added after subsection 181.1(3) as enacted by section 5 of The Consumer Protection Amendment Act (Contracts for Distance Communication Services), S.M. 2014, c. 28:

Part XXVII does not apply

181.1(4)    To avoid doubt, Part XXVII (Home Improvement Contracts) does not apply to contracts for remote surveillance systems that include system installation.

7           This Act comes into force on a day to be fixed by proclamation.