1975 Bill 21 (Second SessiOIJ) First Session, 18th Legislature. 24 Elizabeth II THE LEGISLATIVE ASSEMBLY OF ALBERTA BILL 21 THE UNFAIR TRADE PRACTICES ACT THE MINISTER OF CONSUMER AND CORPORAT;E AFFAIRS First Reading ............................. . Second Reading .................. , ....... " .. . Third Reading ......................... ; ... . Printed by the Queen's Printer for the Province of Alberta, EDMONTON

Bill 21 BILL 21 1975 (Second Session) THE UNFAIR TRADE PRACTICES ACT (Assented to , 1975) HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Alberta, enacts as follows: 1. In this Act, (a) "consumer" means (

i) a person who receives or has the right to receive goods or services or both under a con­ sumer transaction, or (ii) an individual who receives goods or services or both as a gift to him from a person who obtained or has the right to obtain the goods or services or both from a supplier, or (iii) a person who is or may become obligated at law to pay all or part of the consideration under a consumer transaction to a supplier or to otherwise compensate a supplier for goods or services or both, whether or not he is the recipient of or has the right to receive the goods or services; (b) "consumer organization" means any corporation that has as one of its obj ects the protection or ad­ vancement of the interests of consumers and is not incorporated for the purpose of acquiring gain for its members; ( c) "consumer transaction" means (

i) a sale or lease of goods or any other disposition of goods for a consideration, whether or not the sale, lease or disposition includes any agree­ ment or arrangement under which services are provided, or (ii) an agreement or arrangement under which services are provided for a consideration, or

Explanatory Notes General. This Bill is aimed at preventing unfair acts and practices in connection with certain consumer purchases of goods and ser­ vices. A Director of Trade Practices will administer the Bill as an officer of the Department of Consumer and Corporate Affairs. Unfair acts and practices are enumerated in

section 4. The Bill also provides remedies available in the courts by consumers, consumer organizations and the Director of Trade Prac­ tices where unfair acts or practices have been committed. 1.

Definitions.

(iii) an award by chance of goods or servi'ces 'Or both; (d) "court" means the Supreme Court of Alberta or a district court; (e) "Director" means the Director 'Of Trade Practices appointed under

section 3, and includes a person authorized in writing by the Director to perform all or any of his duties and exercise all or any of his powers under this Act; (f) "goods" means tangible personal property that is to be used by an individual for purposes that are primarily personal, family or household, or any right in that property; (g) "services" means services (

i) provided in respect of the maintenance or re­ pair of goods 'Or of rea:l property used as a private dwelling by an individual, or (ii) provided to an individual in conjunction with the use of social, recreational 'Or physical fit­ ness facilities, or (iii) that are in their nature instructional 'Or edu­ cational; (h) "supplier" means (

i) a person wh'O in the course of his business be­ comes liable under a consumer transaction to sell, lease or otherwise dispose of goods or to provide services 'Or both, or in the case of an 'award by chance "Of goods or services or b"Oth, t'O provide the goods or services lawarded, or (ii) a person who in the course 'Of his business (

A) manufactures, assembles or produces goods that are the subj ect of a consumer trans­ action, or (

B) acts as a wholesaler or distributor of goods that are the subject of a consumer trans­ action, or (

c) solicits, advertises or otherwise promotes the use, purchase or acquisition in any manner of goods or services that are the subj ect of a consumer transaction, or 2

(iii) a person who receives or is entitled to receive all or part of the consideration paid 'Or payable under a consumer transaction, whether as a party thereto or as an assignee or otherwise, or who is otherwise entitled to be compensated by a consumer for goods or services or both. 2.

(1) Except as provided in ,the regulations, this Act applies (

a) to all consumer transactions arising on or after the date this Act comes into force, and (

b) to those consumer transactions arising before the date this Act comes into force that are renegotiated, revised, extended, renewed or otherwise modified on or after the date this Act comes into force.

(2) For the purpose of subsection (1), clause (b), a consumer transaction shall be deemed n'Ot to be renegotiated, revised, extended, renewed or otherwise modified solely by reason of an extension of time for payment under the con­ sumer transaction.

(3) This A'ct does n'Ot apply to services provided by (

a) a person who, on behalf of another person, broad­ casts by radio or television or prints, publishes or distributes a representation or an advertisement that he accepts in good faith for br'Oadcasting, printing, publishing or distributing in the ordinary course of his business, 'Or (

b) a person employed in domestic work in a private dwelling, 'Or (

c) a person employed in icasual employment. 3. In accordance with The Public Service Act, there may be appointed a Director of Trade Practices, inspectors and such other persons as may be necessary for the administra­ tion of this Act. 4.

(1) For the purposes of this Act, the following are unfair 'acts or practices: (

a) the subjection of the consumer to undue pressure by a supplier to enter into a consumer transaction; (

b) the entering into a consumer transaction by a sup­ plier where (

i) the consumer's ability was such that he was not reasonably able to understand the character or nature of that consumer transaction, and 3

2. Application of Act. 3. Staff. 4. Unfair acts or practices. 3

(ii) that supplier took unfair advantage of that consumer's inability to understand the charac­ ter or nature of that consumer transaction; (

c) the entering into a consumer transaction by a sup­ plier in circumstances where (

i) the supplier knew that there was a defect in the goods or that any or all of the services could not be provided, (ii) the supplier knew that the consumer was not aware of or could not reasonably become aware of the defect in the goods or the fact that any or all of the services could not be provided, and (iii) the defect in the goods or the failure to provide any or all of the services causes or is likely to cause the consumer to be substantially de­ prived of the benefit or benefits reasonably anticipated by that consumer under that con­ sumer transaction; (

d) any representation or conduct that has the effect, or might reasonably have the effect, of deceiving or misleading a consumer or potential consumer and, without limiting the generality of the fore­ going, includes any representation or conduct of the following kinds: (

i) a representation that the goods or services have sponsorship, approval, performance char­ acteristics, accessories, ingredients, quantities, components, uses or benefits that they do not have; (ii) a representation that the supplier has a spon­ sorship, approval, status, affiliation or connec­ tion that he does not have; (iii) a representation that the goods are of a partic­ ular standard, quality, grade, style or model if they are not; (iv) a representation that the goods have been used to an extent that is different from the fact; (

v) a representation that the goods are new or un­ used if they are not; (vi) a representation that the goods are new or un­ used if they are deteriorated, altered, recondi­ tioned or reclaimed; (vii) a representation that the goods have a particu­ lar prior history or usage if they have not; (viii) a representation that the goods or services are available for a reason that is different from the fact; 4

(ix) (x) (xi) a representation that the goods or services have been made available in accordance with a pre­ vious representation if they have not; ,a representation that the goods or services are available if the supplier has no intention of supplying or otherwise providing the goods or services as represented or if the supplier does not have any reasonable grounds on which to believe that he has the ability to supply or otherwise provide the goods or services as rep­ resented; a representation that a specific price benefit or advantage exists if it does not; (xii) a representation that a part, replacement, re­ pair or adj ustment is needed if it is not; (xiii) a representation by a supplier that a solicita­ tion made by that supplier is for a particular purpose if, in fact, that solicitation is made for a different purpose than was represented; (xiv) a representation that a consumer transaction involves or does not involve rights, remedies or obligations if the representation is deceptive or misleading; (xv) a representation such that a consumer might reasonably conclude that the goods are avail­ able in greater quantities than are in fact avail­ able from the supplier; (xvi) a representation as to the authority of a sales­ man, representative, employee or agent to nego­ tiate the final terms of a consumer transaction if the representation is different from the fact; (xvii) giving an estimate or quotation of the price of ,the goods or services which is materially less than the price of the goods 'Or services as sub­ sequently determined or demanded by the sup­ lier 'and the supplier has proceeded with his performance of the consumer transaction wilth­ out the express ,consent 'Of ,the oonsumer; (xviii) giving, in any advertisement or display, less prominence to the total price of the goods or services than to the price of any part of the goods or services.

(2) For the purposes of subsection (1), clause (d), sub­ clause (v), goods shall be deemed to be new or unused where the goods have been reasonably used by the supplier for the purpose of servicing, preparing and testing the goods, or any of them, prior to the goods becoming the subject of a consumer transaction or prior to the goods being delivered to the consumer. 5

(3) An unfair act or practice may occur in the course of inducing persons to enter into a consumer transaction, notwithstanding that the consumer transaction is not com­ pleted or did not take place. 5. The Director may (

a) inquire into matters in respect of which he has reason to believe that an unfair act or practice has taken place or is taking place; (

b) require information from a consumer or supplier or the officers or servants of the supplier that is relevant to determining whether an unfair act or practice has taken place or is taking place. G. The Director shall not publicly disclose the name of a person whose conduct is the subject of an inquiry under this Act unless (

a) that conduct already is the subject of an action or prosecution or is the subj ect of a document of public record and that person's identity has been revealed in that action, prosecution or document, or (

b) that person consents to the disclosure, 'Or (

c) that person is a party to an undertaking under

section 10. 7.

(1) Where the Director has reasonable and probable grounds to believe that a supplier has engaged in or is engaging in an unfair act 'Or practice, the Director may, notwithstanding that an action may not have been com­ menced, apply ex parte to a court for an order permitting him to enter any building, dwelling, receptacle 'Or place to search for, examine and rem'Ove, take extracts fr'Om 'Or ob­ tain reproduced copies 'Of any bo'Oks, files, papers, d'Ocuments 'Or things of that supplier that are or may be relevant t'O determining whether 'Or n'Ot that supplier has engaged in 'Or is engaging in an unfair act or practice.

(2) Upon an applicati'On under subsection (1) being made, the c'Ourt may make an orde,f upon such terms and c'Onditi'Ons as the c'Ourt c'Onsiders proper.

(3) Up'On the order being granted under subsecti'On (2), any person affected by the 'Order may, UP'On n'Otice to the Direct'Or, apply t'O the court to have the 'Order varied 'Or set aside and UP'On hearing the matter the c'Ourt may refuse the application 'Or vary or set aside the 'Order UP'On such terms and condi ti'Ons as the c'Ourt considers proper. 8. A pers'On who, acting under an 'Order granted under secti'On 7, rem'Oves any b'O'Oks, files, papers d'Ocuments 'Or things shall ' 6

s. Powers of the Director. 6. Confidentiality. 7. Entering premises, investigating records and verification of information. 8. Removal of records and other items. 6

(

a) give to the person from whom the items were taken a receipt for the items taken, and (

b) forthwith make copies of, take photographs of or otherwise record the items removed and forthwith return the items to the person to whom the receipt was given under clause (a). 9.

(1) Where a supplier has been paid money or been given security by a consumer in respect of a consumer transaction and (

a) the supplier has absconded from Alberta, or (

b) the Director has reasonable and probable grounds to believe that the supplier (

i) is about to abscond from Alberta, 'or (ii) is dissipating his assets, or (iii) is dissipating money paid or security given to him by the consumer, the Director may, notwithstanding that an action may not have been commenced, apply ex parte to a court for an order (

c) prohibiting any person (

i) holding funds of that supplier, or (ii) having possession of or control over any real or personal property or other assets 'Of that supplier, or (iii) who has any debt or other choses in action pay- able to that supplier, from dispersing or otherwise dealing with the funds, property, assets, debts or choses in action except as approved by the court; (

d) appointing a trustee or receiver or both to hold or take possession of the funds, property, assets, debts or choses in action of that supplier upon such terms and conditions as the court approves; (

e) directing any supplier who is the subject of an inquiry under this Act not to dispense any funds or deal with any property, assets or debts or choses in action owing to him except as approved by the court or directed by the trustee or receiver.

(2) Upon an application under subsection (1) being made, the court may make an order upon such terms and conditions as the court considers proper.

(3) Upon the order being granted under subsection (2), any persons affected by the order may, upon notice to the Director, apply to the court to have the order varied or set aside and upon hearing the matter the court may refuse the application or vary or set aside the order upon such terms and conditions as the court considers proper. 7

9. Order affecting supplier's assets. 7

(1) Where (

a) a supplier has engaged ,in or has been engaging in an unfair act or practice, and (

b) that supplier has satisfied the Director that he has ceased engaging in that act or practice, that supplier may enter into an undertaking with the Direc­ tor in such form and containing such provisions as the Director, upon negotiation with that supplier, considers proper and without restricting the generality of the fore­ going, the undertaking may contain specific undertakings by the supplier (

c) to refrain from engaging in those acts or practices that were unfair, and (

d) to redress those consumers who suffered damage or loss due to those unfair acts or practices.

(2) Any time after a supplier enters into an undertaking he may request the Director to vary or terminate that undertaking and upon considering the request the Director may vary or terminate that undertaking.

(3) Notwithstanding subsection (2), any time after a supplier has entered into an undertaking he may apply to a court by way of originating notice for an order (

a) terminating that undertaking, where the court is satisfied that the act or practice that the supplier undertook to refrain from engaging in was not unfair, or (

b) varying the provisions of that undertaking, where the court is satisfied that the circumstances warrant varying the provisions of that undertaking. ( 4) Where an undertaking is terminated or varied under this section, that termination or variance does not invali­ date anything done under that undertaking prior to the termination or variance of that underaking.

(5) The Director shall maintain a public record of all undertakings entered into under this section. 11.

(1) Where a consumer (

a) has entered into a consumer transaction, and (

b) in respect of that consumer transaction, has suf- fered damage or loss due to an unfair act or practice, that consumer may commence an action in a court against any supplier who engaged in or acquiesced in the unfair act or practice that caused that damage or loss, for relief from that damage or loss.

(2) In an action under this section, the court may (

a) make an order declaring that the act or practice is an unfair act or practice; 8

10. Supplier's undertakings. I I. Actions by individual consumers. 8

(

b) award damages for damage or loss suffered; (

c) award punitive or exemplary damages; (

d) make an order for (

i) specific performance 'Of the consumer trans­ action, or (ii) restitution of property or funds, or (iii) recission of the consumer transaction; (

e) grant an order in the nature of an injunction re­ straining the supplier from engaging in the unfair act 'Or practice; (

f) make such directions and grant such other relief as the court considers proper.

(3) The court may award party and party costs and solicitor and client costs or either 'Of them.

(4) When an action is commenced under subsection (1), the plaintiff shall serve the Director with a copy of the statement of claim within 15 days after the date 'On which the statement of claim was served upon ·the defendant.

(5) Where a consumer commences an action under this section, he shall not take the next step in the action until he has served the Director under subsection (4).

(6) Upon being served under subsection (4), the Director may, upon notice to all parties to the action, make applica­ tion to the court to be added as a party and upon the 'Order being made the DirectQr may take any steps he CQuld have taken had he cQmmenced an actiQn under sectiQn 12. 12.

(1) Where the DirectQr is of the 'Opinion that a supplier (

a) has engaged in or is engaging in an unfair act 'Or practice, or (

b) has not cQmplied with the terms 'Of an undertaking which that supplier has entered into, he may commence and maintain an actiQn in a court against that supplier.

(2) In action brought under subsectiQn (1), the court may (

a) make an 'Order declaring that the act or practice is an unfair act 'Or practice; (

b) grant an 'Order in the nature of an injunction re­ straining the supplier frQmengaging in the unfair act 'Or practice; (

c) grant such other relief as the court considers proper. (3) ~n addition to any order made or relief granted under subsect~on (2), the court may, in an action brQught under subsectIQn (1), clause (b), award punitive 'Or exemplary damages. 9

12. Actions by the Director. 9

(4) Damages awarded under this

section are a debt owing to the Crown. 13.

(1) Subject to this section, the Director may, where in his opinion it is in the public interest to do so, (

a) commence and maintain an action under

section 11 where a consumer has a cause of action under that section, or (

b) maintain an action under

section 11 after it has been commenced, or (

c) bring and maintain an appeal in an action under

section 1I.

(2) Where, pursuant to subsection (1), the Director brings or maintains an action or an appeal under

section 11, he shall do so in the name of and on behalf of that consumer and he shall be entitled to take the same steps in and have the same control over the action or appeal including the right to settle the action or appeal or any part thereof, as that consumer would have had in respect of that action or appeal.

(3) The Director shall not bring or maintain an action or an appeal under this

section without first obtaining the written consent of the consumer in whose name the action is brought.

(4) Upon the consumer giving written consent under subsection (3), the Director may, without consulting or seeking any further consent of the consumer, conduct the action or appeal in such a manner as the Director considers appropriate and proper.

(5) In any action or appeal commenced, brought or maintained by the Director pursuant to subsection (1), (

a) any moneys recovered, excluding costs of the action or appeal, shall be paid to the consumer; (

b) any moneys payable by the consumer, excluding costs of the action or appeal, are not recoverable from the Director or the Government of Alberta; (

c) the costs of the action or appeal shall be paid to or borne by the Director.

(6) Nothing in this

section abrogates or restricts any right of set-off that a supplier has or may have against a consumer on whose behalf the Director is acting under this section.

(7) Where the Director, while acting on behalf of a consumer under this section, releases a supplier from a liability or an obligation arising out of the cause of action, that release shall extinguish that claim to the liability or obligation referred to in that release which that consumer may have against that supplier. 10

13. Actions by the Director on behalf of consumers. 10

(1) A consumer organization may commence and maintain an action in a court against a supplier who is en­ gaging in or has engaged in an unfair aClt or practice.

(2) In an action under this section, the court may (

a) make an order declaring that the act or practice is an unfair act or practice, and (

b) grant an order in the nature of an injunction re­ straining the supplier from engaging in the unfair act or practice.

(3) A consumer organization bringing an action under this

section shall not be required to have an interest in or be affected by the matter in issue in order to commence and maintain the action.

(4) Where an action is commenced under this section, the court may order the consumer organization that commenced the action to furnish security for costs in such amount as the court considers proper. 15.

(1) Upon the commencement of an action under

section 11, 12 or 14, a plaintiff may apply ex parte for an order in the nature of an interim injunction and if the court is satisfied that (

a) there are reasonable and probable grounds for be­ lieving that there exists an immediate threat to the interests of persons dealing with the defendant supplier by reason of an alleged unfair act or prac­ tice, or (

b) the applicant has established a prima facie case 'Of the existence of an unfair act or practice being committed by the defendant supplier, the court may grant an order in the nature of an interim injunction, on such terms and conditions as the court con­ siders proper, restraining the supplier from carrying on that act or practice that is alleged to be unfair.

(2) In any application for an order in the nature of an interim inj unction, (

a) the applicant need not establish that irreparable harm will be done to himself or all other consumers or any designated class of consumers in Alberta if the interim injunction is not granted, and (

b) the court may dispense with any requirement by the applicant to post a bond or give any undertaking as to damages. 11

14. Actions by consumer organizations. 15. Interim injunction. 11

1'6.

(1) Where the court grants relief under

section 11, 12 or 14, the court may make a further order requiring the supplier to advertise to the public particulars of any order, judgment or other relief gran ted by the court.

(2) In making an order under subsection (1), the court may prescribe (

a) the methods of making the advertisement so that it will assure prompt and reasonable communication to consumers; (

b) the content or form or both of the advertisement; (

c) the number of times the advertisement is to be made; (

d) such other conditions as the court considnrs proper. 17.

(1) Every person and every director, officer or em­ ployee of a person who (

a) refuses to provide information required under sec­ tion 5, or (

b) provides false information when providing infor- mation under

section 5, is guilty of an offence and liable on

summary conviction to a fine of not more than $5,000 'Or to imprisonment for a term of not more than one year t or to both.

(2) Where a regulation is made pursuant to

section 20, clause (a), every supplier and every director, officer or employee of a supplier who makes a representation to which the regulation applies and that does not contain as part thereof the information prescribed by the regulation, is guilty of an offence and liable on

summary conviction to a fine of not more than $1,000 or to imprisonment for a term of not more than three months, or both. 18. Any copy made under

section 8 and certified to be a true copy by the person making the inquiry shall be ad­ mitted in evidence in any action, proceeding or prosecution as prima facie proof of the original book, file, paper, docu­ ment or thing and its contents. 19.

(1) The provisions of this Act apply notwithstand­ ing any agreement to the contrary and any waiver or release given of the rights, benefits or protections provided under this Act is against public policy and void.

(2) Nothing [n this Act restricts, limits or derogates from any remedy that a person has at common law or under statute. 12

16. Advertisement of judicial decisions. 17. Offences. 18. Evidence. 19. Effect of Act. 12

20. The Lieutenant Govern'Or in Council may make reg­ ulations (

a) prescribing information that must be part of a rep­ resentation made by a supplier or class thereof in respect of any consumer transaction or class there­ of; (

b) respecting the form of and manner of filing com­ plaints under this Act; (

c) exempting any class 'Of consumer transaction from the operation of all or any of the provisions of this Act; (

d) generally respecting any other matter necessary for carrying out the purpose and intent of this Act. 21. This Act comes into force on a date to be fixed by Proclamation. 13

20. Regulations. 13 Title: 1975 (18th, 1st) Bill 21, The Unfair Trade Practices Act