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C.C.S.M. c. B120
The Business Practices Act
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(Assented to December 14, 1990)
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:
In this Act,
"consumer" means an individual who is or may become the consumer in a consumer transaction; (« consommateur »)
"consumer transaction" means a transaction between a consumer and a supplier for the retail sale or lease or other retail commercial disposition, by the supplier to the consumer, of any goods, in the ordinary course of business of the supplier and primarily for the consumer's personal, family or household use; (« opération commerciale »)
"court" means the Court of King's Bench; (« tribunal »)
"director" means the Director of Business Practices appointed under Part II; (« directeur »)
"goods" means goods or services that are or may become the subject of a consumer transaction; (« objets »)
"minister" means the member of the Executive Council charged by the Lieutenant Governor in Council with the administration of this Act; (« ministre »)
"publish" means to make public by or through any media; (« publier »)
"supplier" means a person who, as principal or agent, is carrying on or is engaged in the business of
(a) selling, leasing or otherwise disposing of goods on a retail basis, or
(b) manufacturing, producing or assembling goods, or
(c) distributing goods; (« fournisseur »)
"unfair business practice" means an unfair business practice within the meaning of section 2, 3 or 3.1. (« pratique commerciale déloyale »)
UNFAIR BUSINESS PRACTICES
It is an unfair business practice for a supplier
(a) to do or say anything or to fail to do or say anything if, as a result, a consumer might reasonably be deceived or misled; or
(b) to make a false claim or representation.
In determining whether anything is an unfair business practice within the meaning of subsection (1), the factors to be considered shall include the general impression given.
Without limiting the generality of subsection (1), any of the following representations, acts or omissions, when made or engaged in by a supplier in relation to goods or to a consumer transaction, is deemed for the purposes of this Act to be an unfair business practice within the meaning of that subsection:
(a) a representation that the goods have sponsorship, approval, performance characteristics, accessories, ingredients, components, quantities, uses or benefits that they do not have;
(b) a representation that the supplier has sponsorship, approval, status, affiliation or connection that the supplier does not have;
(c) a representation that the goods are of a particular standard, quality, grade, style or model when they are not;
(d) a representation that the goods are new or unused when they are not, or when they are in a deteriorated state, or have been altered or reconditioned, or have been reclaimed from a previous purchaser;
(e) a false representation as to the extent to which the goods have been used;
(f) a false representation as to the history or usage of the goods;
(g) a false representation as to the reason the goods are available;
(h) a false representation that the goods have been made available in accordance with a previous representation;
(i) a representation that might reasonably lead a consumer to conclude that the goods are available in greater quantities than are in fact available from the supplier;
(j) a representation that the goods are available, when the supplier has no intention of supplying or otherwise disposing of the goods as represented;
(k) a false representation that a service, part or replacement of the goods, or the addition of new goods, or the repair of the goods, is necessary or desireable;
(l) a representation that a price benefit or advantage exists with respect to the goods or with respect to the consumer transaction when it does not;
(m) a representation that a solicitation of or any communication with a consumer is for a certain purpose or intent when it is not for that purpose or intent;
(n) a false representation that the consumer transaction involves or does not involve rights, remedies or obligations;
(o) a representation that a salesperson, representative, employee or agent has authority to negotiate the final terms of the consumer transaction when that person does not have that authority;
(p) the use of exaggeration, innuendo or ambiguity as to a material fact, or the failure to disclose a material fact, with respect to the goods or with respect to the consumer transaction;
(q) where the supplier gives a consumer an estimate of the price of the goods, demanding from the consumer a price that is materially higher than the estimate unless, prior to providing the goods, the supplier has obtained the consumer's express consent to that higher price;
(r) where the price of a part of the consumer transaction is given in an advertisement, display or representation, not giving in that advertisement, display or representation reasonable prominence to the total price of the consumer transaction;
(s) [repealed] S.M. 2013, c. 34, s. 5;
(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.
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.
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.
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.
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.
Any of the unfair business practices described in sections 2, 3 and 3.1 is an unfair business practice for the purposes of this Act, notwithstanding
(a) that the unfair business practice is not directed at a specific consumer and does not occur in the course of or for the purposes of a specific consumer transaction but is directed to the public at large; and
(b) that there is no privity of contract between the supplier and any specific consumer affected by the unfair business practice.
No supplier shall commit an unfair business practice.
Anything that would be an unfair business practice if committed by a supplier, is an unfair business practice if committed by the supplier's employee, and any court action or proceeding or order that may be taken or made against a supplier under this Act may be taken or made against the supplier's employee.
No employee of a supplier shall commit an unfair business practice.
Both the supplier and the employee are liable for any unfair business practice committed by the supplier's employee.
An unfair business practice may occur before, during or after a consumer transaction, and is an unfair business practice for all the purposes of this Act notwithstanding that no consumer transaction is in fact entered into or concluded.
A single representation, failure, act or thing within the meaning of section 2, 3 or 3.1 constitutes an unfair business practice for the purposes of this Act.
A person who, on behalf of a supplier, publishes an advertisement in good faith and in the ordinary course of business is not responsible under this Act for the truth or accuracy of any representation in the advertisement.
[Not proclaimed, but repealed by S.M. 1996, c. 64, s. 2]
ADMINISTRATION AND ENFORCEMENT
A Director of Business Practices and such other employees as may be necessary to administer this Act may be appointed under Part 3 of The Public Service Act.
The director may delegate any of the director's powers or duties under this Act to an employee appointed under section 10.
The minister, with the approval of the Lieutenant Governor in Council, may appoint, engage or employ, and may fix the remuneration of, such part-time or full-time experts and other qualified persons, in addition to the persons appointed under section 10, as the minister deems necessary for the administration of this Act.
(a) shall administer and enforce this Act and the regulations;
(b) may inform consumers and suppliers of the provisions of this Act and the regulations and of their respective rights and duties thereunder; and
(c) may receive, handle and mediate complaints respecting consumer transactions.
The director may attempt to resolve consumer complaints of unfair business practices by mediation.
The director may refuse to handle or mediate a complaint if the subject matter of the complaint more closely relates to other applicable federal or provincial legislation or to municipal by-laws, or for any other reason.
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.
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.
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.
An inspector must show his or her identification if requested to do so in the context of an inspection.
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.
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.
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.
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.
No person shall hinder, obstruct or interfere with an inspector conducting an inspection under this section.
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.
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.
A warrant under this section may be issued upon application without notice.
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.
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.
A warrant under this section may be issued upon application without notice.
The director shall give or leave a receipt for any book, paper, document or thing retained for use as evidence under section 15 or 16.
Any book, paper, document or thing retained under section 15 or 16 shall be returned to the owner within a reasonable time, and upon the request of the owner before it is returned and if the request is reasonable the director shall forthwith furnish the owner with a copy thereof without charge.
No person shall conceal or destroy any book, paper, document or thing relevant to an investigation under section 15 or to a search under section 16 or in any way obstruct such an investigation or search.
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.
Subject to subsection (3), an order takes effect 14 days after it is served on the supplier.
A supplier against whom an order is made under subsection (1) shall be served with a copy of the order together with written reasons for the making thereof.
The supplier named in an order under subsection (1) may appeal from the order to the court within 14 days after being served therewith, and in the event of such an appeal the order is stayed pending the outcome of the appeal.
Where a supplier appeals from an order of the director in accordance with subsection (3), the court may
(a) confirm or vary the order;
(b) set aside the order;
(c) make such other order as it considers proper;
(d) attach such terms and conditions to the order of the director as it considers proper.
The director and the supplier who is appealing, and such other persons as the court may direct, are parties to proceedings before the court in an appeal under this section.
In an appeal under this section, the director has the burden of establishing that the appellant is committing or has committed the unfair business practice set out in the director's order.
Where the director is satisfied that a supplier has committed or is committing or is about to commit an unfair business practice in relation to a consumer transaction, and the supplier has received money or security from the consumer in respect of the transaction, and the director is satisfied that an order under this subsection is necessary for the protection of the public, the director may, subject to subsection (2), apply to the court ex parte for an order
(a) prohibiting any person
(i) who is holding funds of the supplier, or
(ii) who has possession of or control over any real or personal property or other assets of the supplier, or
(iii) who has a debt payable to the supplier,
from disposing of or otherwise dealing with the funds, property, assets or debt except as approved by the court;
(b) directing the supplier not to disburse any funds or otherwise deal with any funds, property or assets of the supplier, or debts owing to the supplier, except as approved by the court;
and the court may make the order or such other order as it deems proper.
The amount or value of any funds, property, assets or debt affected by an order under subsection (1) shall, as nearly as may be possible, bear a reasonable relationship to the amount or value of the money or security paid or given to the supplier by the consumer.
A supplier and any other person affected by an order made under subsection (1) may, on notice to the director, apply to the court to have the order varied or set aside.
Where a supplier or other person against whom an order is made under subsection (1) is in doubt as to the application of the order to any funds, property, assets or debt, or another person not named in the order claims a right, title or interest in the funds, property, assets or debt, the supplier or other person, as the case may be, may pay or deliver the funds, property or assets or the amount of the debt into court.
An order made under this section ceases to have any force or effect upon the expiry of five days from the making thereof, Saturdays, Sundays and holidays excluded, unless it is renewed by the court prior thereto upon the application of the director, and the court upon such an application may renew the order for such period of time and on such terms and conditions as it deems proper.
Subsection (1) does not apply where a supplier who has received money or security from a consumer in respect of a consumer transaction files or deposits with the director a bond or other security, in a form and an amount and containing terms and conditions acceptable to the director, in the name of and for the benefit of the director, and the director is satisfied that it is not contrary to the public interest to accept the bond or security in lieu of an order under that subsection.
In the event of a breach of any term or condition of a bond or security filed or deposited by a supplier under subsection (6), the director shall on notice to the supplier apply to the court for directions as to the forfeiture of the bond or security and the realization and disposition of the proceeds thereof.
Where the director is satisfied that a supplier has been committing an unfair business practice, the director, if satisfied that the supplier has ceased to do so, may accept from the supplier a written assurance, in a form and containing terms and conditions to be determined by the director, undertaking not to commit any unfair business practice in the future, and, without limiting the generality of the foregoing, the assurance may include all or any of the following additional undertakings:
(a) to comply with this Act and the regulations;
(b) to refund, return or pay to the consumers, if any, specified in the assurance any money, property or other thing received from them in connection with a consumer transaction, and any money necessarily expended by them in making and pursuing a complaint under this Act;
(c) to abide by the terms and conditions set out in the assurance in all future consumer transactions;
(d) to provide a bond or other security to the director, in a form and an amount and containing terms and conditions to be determined by the director, guaranteeing that the supplier will comply with this Act, the regulations and the assurance;
(e) to reimburse the director on demand with the reasonable costs of any inspection the director may have carried out respecting the supplier;
(f) to comply with any requirements set out in the assurance as to the form, content and maintenance of trust accounts, records, contracts, advertisements or other documents or papers respecting consumer transactions of the supplier;
(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;
(g) to complete all existing uncompleted consumer transactions of the supplier in compliance with this Act, the regulations and the terms and conditions of the assurance.
Every security provided under an assurance given pursuant to subsection (1) shall be forfeited upon demand in writing by the director, where the supplier in respect of whose conduct the security is conditioned breaches any part of the assurance.
A supplier to whom a demand of forfeiture is directed under subsection (2) may appeal therefrom to the court within 14 days after the date of the demand, and the court may make such order with respect to the forfeiture as it deems fit.
The director may stipulate that the proceeds of any security forfeited pursuant to this section, or so much thereof as may be necessary, be paid over to such persons as the director considers entitled thereto by reason of any consumer transaction to which this Act applies.
Any moneys not expended pursuant to a stipulation under subsection (4) shall be refunded to the supplier, except where there are third party claims against those moneys and in such a case the moneys not expended shall be paid into court.
Where the security under which moneys are recovered pursuant to this section is a bond furnished by a person other than the supplier, any moneys not expended pursuant to a stipulation under subsection (4) shall be refunded to that person whether or not there are third party claims against them.
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.
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.
Notwithstanding any other provision of this Act, the minister may appoint a person to conduct an investigation into any matter to which this Act applies, and the person so appointed shall report the results of the investigation to the minister and, for the purposes of the investigation, has the powers of a commissioner under Part V of The Manitoba Evidence Act.
RIGHT OF ACTION
A consumer may commence a court action against a supplier for relief from an unfair business practice.
Where the court finds in an action under subsection (1) that an unfair business practice has occurred, it may, subject to subsections (3) and (4),
(a) award damages for any loss suffered by the consumer;
(b) rescind the consumer transaction, if any;
(c) grant an injunction restraining the supplier from continuing the unfair business practice;
(d) order the supplier to repay all or part of any amount paid to the supplier by the consumer or relieve the consumer from the payment to the supplier of any amount or any further amount, as the case may be, in respect of the consumer transaction, if any;
(e) make an order of specific performance against the supplier;
(f) give such other directions and grant such other relief as the court deems proper.
In determining whether to grant any relief under this section and the nature and extent thereof, the court shall consider whether or not the consumer made a reasonable effort to minimize any damage resulting from the unfair business practice and to resolve the dispute with the supplier before commencing the court action.
A judgment under subsection (2) may include an award of exemplary or punitive damages against the supplier, except where the supplier took reasonable precautions and exercised due diligence to avoid the unfair business practice.
Where the director is satisfied that an unfair business practice has occurred within the meaning of section 3 or 3.1, the director may, on behalf of any consumer affected thereby but subject to subsection (2),
(a) commence any court action against the supplier that the consumer would be entitled to bring under section 23;
(b) maintain any court action that the consumer has already commenced against the supplier under section 23;
(c) defend any court action brought by the supplier against the consumer with respect to any consumer transaction;
as the case may be.
The director shall not commence, maintain or defend a court action on behalf of a consumer under subsection (1) except with the consent of the consumer and except where the director is satisfied that the consumer is not in a position to protect the consumer's own interests.
In a court action under this section, the court may make any order and grant any relief that it may make or grant under section 23.
The director, and the affected consumer and supplier, and such other persons as the court may direct, are parties to any court action commenced, maintained or defended by the director under this section.
Where, other than in the course of business, a person receives from a consumer, as heir, donee or assignee, goods that were the subject of a consumer transaction, that person has the same rights as the consumer to seek and obtain redress from the supplier under this Act.
Except for the purposes of a prosecution or other proceeding under this Act, or for the purposes of the administration and enforcement of this Act or the regulations, neither the director nor any person employed in the administration of this Act shall
(a) knowingly communicate, or allow to be communicated, to any other person, any information obtained by or on behalf of the director or employee in the course of the administration of this Act; or
(b) knowingly allow any other person to inspect, or to have access to, any book, record, document, file or correspondence, or copy thereof, obtained by or on behalf of the director or employee in the course of the administration of this Act.
Subsection (1) does not prohibit the communication or inspection of or access to any information (including personal information), book, record, document, file or correspondence, or copy thereof, obtained in the course of the administration of this Act,
(a) to or by a department or agency of the government of Manitoba or another province or territory of Canada or the Government of Canada or a municipality in Canada, or to or by the members of a police force of any of the foregoing; or
(b) with the consent of the person to whom the information, book, record, document, file or correspondence relates.
Clause (1)(a) does not prohibit the communication of information (including personal information) obtained in the course of the administration of this Act by the director when, in the director's opinion, it is in the public interest to do so.
Except in respect of a prosecution, civil suit or other proceeding under this Act, neither the director nor any other person may be compelled, in any court action or other proceeding, to give evidence disclosing information obtained in the course of the administration of this Act.
The provisions of this Act apply notwithstanding any agreement to the contrary, and any waiver or release given of the rights, benefits or protections provided under this Act is void.
No person shall request or require a consumer to waive, release or limit his or her rights under this Act.
Nothing in this Act restricts, limits or derogates from any remedy that a consumer may have under any other Act or law.
This Act does not apply to any unfair business practice committed before the day the Act comes into force.
No liability attaches to the Crown in right of Manitoba or the minister or director, or any person employed in the administration of this Act, for any loss or damage suffered by a person by reason of anything done or omitted to be done in good faith and without negligence in the course of the administration of this Act.
The Lieutenant Governor in Council may make regulations
(a) exempting a specified class of supplier or a specified type of consumer transaction from any provision of this Act or the regulations;
(b) restricting the application of this Act to a specified class of supplier or a specified type of consumer transaction;
(c) requiring suppliers to furnish financial and other information and reports to the director;
(d) requiring information or reports furnished to the director pursuant to a regulation made under clause (c) to be verified by affidavit;
(e) prescribing the method of service of documents by the director;
(f) prescribing, in respect of any class of supplier, the form and content of any contract, notice or other document to be used in consumer transactions;
(f.1) [repealed] S.M. 2013, c. 34, s. 8;
(f.2) defining any word or phrase used but not defined in this Act;
(g) respecting any other matter or thing necessary to carry out the purpose and intent of this Act.
Except in circumstances that the minister considers to be of an urgent nature, the minister shall provide an opportunity for public consultation and seek the advice and recommendations of the public with respect to any regulation proposed to be made under subsection (1), before the regulation is made.
[Repealed] S.M. 2013, c. 34, s. 8.
Any person who
(a) contravenes or fails to observe a provision of this Act or the regulations or an order of the director; or
(b) fails to observe any provision of an assurance given under section 20; or
(c) fails or refuses to furnish information as required under this Act; or
(d) gives false or misleading information to a person acting under this Act;
is guilty of an offence and liable, on summary conviction,
(e) if an individual, to a fine of not more than $100,000. or imprisonment for a term of not more than 12 months or both in the case of a first offence, and to a fine of not more than $300,000. or imprisonment for a term of not more than 36 months or both in the case of a second or subsequent offence; and
(f) if a corporation, to a fine of not more than $300,000. in the case of a first offence, and to a fine of not more than $1,000,000. in the case of a second or subsequent offence;
and, in addition, may be ordered, at the time the penalty is imposed, to pay to any consumer affected by the offence such amount by way of compensation for loss or damage as the judge imposing the penalty may determine.
If an amount is ordered to be paid as compensation under subsection (1), 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.
Where a corporation is convicted of an offence under this section, every director and officer of the corporation who authorized or permitted the offence is also guilty of the offence and liable to the penalties set out in clause (1)(e).
This Act may be referred to as chapter B120 of the Continuing Consolidation of the Statutes of Manitoba.
This Act comes into force on a day fixed by proclamation.
NOTE: S.M. 1990-91, c. 6, except subsection 9(2), came into force by proclamation on January 1, 1992. Subsection 9(2) was never proclaimed in force and was repealed by S.M. 1996, c. 64, s. 2.
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