Bill 78 — Third Session, 17Th Legislature, 23 Elizabeth Ii the Legislative Assembly of Alberta Bill 78 the Unfair Trade Practices Act (Legislature 17, Session 3)

L17 S3 5344

Alberta — Bills

1974 Bill 78 Third Session, 17th Legislature, 23 Elizabeth II THE LEGISLATIVE ASSEMBLY OF ALBERTA BILL 78 THE UNFAIR TRADE PRACTICES ACT THE MINISTER OF CONSUMER AFFAIRS First Reading Second Reading Third Reading .......................... Printed by Queen's Printer for the Province of Alberta, EDMONTON

BILL 78 1974 THE UNFAIR TRADE PRA'CTICES ACT (Assented to , 1974) HER MAJESTY, by and with the advice and co.nsent of the Legig,lative A:ssembJy o.f Alberta,enacts as folilows: 1.. In this Act, (a) "consumer" means (

i) a person who. receives o.r has the right to receive go.ods or services lor bo.th under a con sumer transaction, or (ii) an individual who receives goods 'Or services o.r hoth asa gift toO him from a person who obtained or has the right to. obtain the goods or services or bo.th from a supplier, or (iii) a person who. is o.r may become obligated at law to. pay all or part o.f the consideration under a consumer transaCition to. a supplier or to. otherwise co.mpensate a supplier for goods or services or bo.th, whether or not he is the recipient of o.r has the right to receive the go.ods or services; (b) "co.nsumer o.rganizatio.n" means any corporation thart has as one o.f its o.bjects the protection or ad-. vancement of the interests o.f consumers and is not inco.rporated for the purpose o.f acquiring gain for its members; (c) "consumer transactio.n" means (

i) a sale o.r lease of goods or any other disposition of goods for a consideratio.n, whether or not the sale, lease or disposition includes any agree ment or arrangement under which services are pro.vided, o.r (ii) an agreement or arrangement under which services are provided for a co.nsideration, or

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

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

Definitions.

(iii) ,an a w!ard 'by Ichance Oof .gOoods or servkes 'Or both; (d) "court" means the Supreme Court of Alberta or a district court; ( e) "Director" means the Director 'Of Trade Practices appointed under seCJtion 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) "Minister" means the Minister of Consumer Affairs or other member of the Executive Council charged by the Lieutenant Governor in Council with the administration of this Act; (h) "services" means services (

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

i) a person who in the course of his business be comes liable under consumer transactions to sell, lease or otherwise dispose of goods or to provide services. lOr bOoth, or in the case Oof an 'award by chance 'Of go'Ods or services or both, to pr'Ovide the gOoods Oor services, awa~ded, Oor (ii) a person who in the course of his business (

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

B) acts as a wholesaler or distributor of goods that are the subj ect 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 subject 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 not 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) Thi.s A,ct does not aprp,ly to services provided by (

a) a person who, on behalf of another person, prints, publishes, distributes, broadcasts or telecasts a rep resentation or an advertisement that he accepts in good faith for printing, publishing, distributing, broadcasting or telecasting 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 ICIDsual 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 unf.ak acts or pr,actices: (

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 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 the services could not be provided, and (iii) the defect in the goods or the failure to provide the services causes or is likely to cause the consumer to be subs1tantially deprived of the benefit or benefits reasonably antieipated by 1Jhat consumer under tha!t oonsumer trans 'action; (

d) any representation or conduct that has the effect or might reasonably have the effeCit, of deceiving or misleading a consumer or potential consumer which, without limiting- the generality of the fore4 going, includes the following: (

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

(ix) a representation that the goods or services have been made available in accordance with a pre vious representation if they have not; (

x) a rep,resentation 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; (xi) a representation that a specific price benefit or advantage exists if it does not; (xii) a representation that a part, replacement, re pair or adjustment is needed if it is not; (xiii) a representation to a consumer by a supplier that a soUcitation made by that supplier to a consumer is for a purpose or made for an intent if it is not in fact made for that purpose or intent; (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 tia te 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 whieh is materially less 1Jhan the p,rice of the goods 'Or services as sub sequently determined or demanded by the sup lier land the supplier has proceeded with his performance of the consumer transaction wi,th out the express consent 'Of ,the oonSlUmer; (xviii) giving, in any advertisement or display, less prontinence to the total price of the goods or services than to the price of any part of the goods or services.

(2) An unfair act 'Or practice may occur in the '00urse of inducing persons to enter into a consumer transaction, notwithstanding that the consumer transaction is not com pleted or did not take place.

50 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 written 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. Go 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. 70

(1) Where the Director has reasonable and probable grounds to believe that a supplier has engaged in or is engaging in an unfair act lOr practice the Director may, notwiithstanding 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 remove, take extracts from or ob tain reproduced copies of any books, files, papers, documents or things of that supplier.

(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 perslOn 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. 80 A person who, acting under an order granted under

section 7, removes any books, files, papers, documents or things shall (

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). 6

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

(1) Where a supplier who has been paid money or been given security by a consumer in respect to a consumer transaction is the subject of an inquiry under this Act or is a party to an action commenced under this Act, and that supplier has absconded from Alberta, or the Director has reasonable and probable grounds to believe that the sup plier is about to abscond from Alberta or that the supplier is dissipating his assets or 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 (

a) 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; (

b) 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. (

c) direCiting 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 t'O the court t'O 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. 10.

(1) Where a consumer has suffered damage or loss due to an unfair act or practice, that consumer may, on behalf of himself or 'On behalf of himself and 'Other con sumers who have suffered similar damage or loss due to similar unfair acts or practices, commence and maintain an action in court against any supplier of the goods or services that are the subject of the consumer transaction who engaged in or acquiesced in th'Ose unfair acts 'Or prac- 7

9. Order affecting supplier's assets. 10. Actions by individual conswners and conswner class actions. 7

tices that caused that damage or loss, for relief from that damage or loss under this section.

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

a) award damages for damage or loss suffered; (

b) award punitive or exemplary damages; (

c) make an order for (

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

d) make an order declaring that the act or practice is an unfair act or practice; (

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 c'Ourt c'Onsiders pr'Oper.

(3) The court may award party and party costs and s'Olicit'Or and client C'Osts 'Or either 'Of them.

(4) When an acti'On is c'Ommenced under subsecti'On (1), the plaintiff shall serve the Direct'Or 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) Up'On being served under subsection (4), the Director may, upon notice to all parties t'O the action, make applica tion t'O the court t'O be added as a party and upon the order being made the Director may take any steps he could have taken had he commenced an action under

section 11. 11,.

(1) Where the Director is 'Of the opini'On that a supplier has engaged in or is engaging in an unfair act or practice, he may commence and maintain an action in a court agains1t the supplier.

(2) In action brought under this section, 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 f~om engaging in the unfair act or practice; (

c) grant such 'Other relief as the court considers proper. 12.

(1) Subject to this section, the Direct'Or imay, where it is in the public interest t'O d'O s'O, (

a) c'Ommence and maintain an aCItion under

section 10 where a consumer has a cause 'Of action under that section, or 8

II. Actions by the Director. 12. Actions by the Director on behalf of consumers. 8

(

b) maintain an action under

section 10 after it has been commenced, or (

c) bring and maintain an appeal in an action under -

section 10.

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

section 10, he shall do so in the name of and on behalf of that consumer or class of consumers 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 or class of consumers would have had in respect of that action o.r 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 where reasonable and practicable; (

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 ~!l 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 or class of consumers 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 that liability or obligation referred to in that release which that consumer or class of consumers may have against that supplier.

(8) Where money is paid to the Director in an action referred to in subsection (1) and (

a) it is not reasonable 'Or practicabJe to pay the money to ,the consumer, or 9

(

b) the consumer to whom the money is payable can- not be located, the Director may apply to the court for directions respecting the payment of the money and, upon complying with the directions of the court, pay any remaining balance into the General Revenue Fund. 13.

(1) A consumer oganization may commence and maintain an action in a court against a supplier who is en gaging in or has engaged in an unfair act 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. 14.

(1) Upon the commencement of an action under

section 10, 11, 12 or 13, a plaintiff may apply ex parte for an order in the nature of an interim inj unction 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 injunction, (

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 inj unction 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. 10

13. Actions by consumer organizations. 14. Interim injunction. 10

(1) Where the court grants relief under

section 10, 11, 12 'Or 13 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 courlt.

(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 communications 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 considers proper. 16.

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

a) refuses to provide informati'On required under this Act, or (

b) provides false information when providing infor- mation under this Act, 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 any regulation is made pursuant to

section 19, clause (a), every supplier, and every director, officer or employee 'Of a supplier wh'Omakes 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. 17. 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. 18.

(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 in this Act shall restrict, limit or derogate from any remedy that a person has at common law or under statute. 11

IS. Advertisement of judicial decisions. 16. Offences. 17. Evidence. 18. Effect of Act. 11

19. The Lieutenant Governor 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 oper~tion 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. 2.0. This Act comes into force on a date to be fixed by Proclamation. 12

19. Regulations. 12 Title: 1974 (17th, 3rd) Bill 78, The Unfair Trade Practices Act

Document details

Collection	Alberta — Bills
Citation	L17 S3 5344
Type	bill
Volume / chapter	L17 S3 5344
Language	en
Format	json
Source	PROVINCIAL
Identifier	984f8a5da75e327e84f531266160038c6d4f3038

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