1995 Legislative Session: 4th Session, 35th Parliament
FIRST READING
The following electronic version is for informational purposes only.
The printed version remains the official version.
HONOURABLE JOAN SMALLWOOD
MINISTER OF HOUSING, RECREATION
AND CONSUMER SERVICES
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:
1 Section 1 of the Consumer Protection Act, R.S.B.C. 1979, c. 65, is amended
(a) by striking out the definition of "direct sale" and substituting the following:
"direct sale" means a contract for the sale of goods or services or both made by a seller
(a) in the ordinary course of business,
(b) at a place other than the seller's permanent place of business, and
(c) either
(i) without the purchaser having requested the seller to attend at the place where the contract is made, or
(ii) in response to the purchaser's request that the seller attend at the place where the contract is made, if that request is solicited by or on behalf of the seller by means of a representation that does not plainly disclose that the seller is selling the type of goods or services that are the subject of the solicitation or contract,
but does not include a contract where the sale, offering for sale or soliciting of orders is made by telephone, mail, fax or any other method that does not involve face to face contact with the intended purchaser; ,
(b) by striking out the definition of "direct seller" and substituting the following:
"direct seller" means a seller whose business includes making direct sales, soliciting orders for direct sales, or both, whether personally or through a salesperson; , and
(c) by adding the following definition:
"time share contract" means a contract, that is not covered by the provisions regarding time share plans in the Real Estate Act, by which an individual acquires the right to use property, whether or not the property is located in British Columbia,
(a) for a period of time each year, or other interval, and
(b) as part of a plan that provides for the use of the property to circulate, in any year, among persons participating in the plan.
2 The following section is added:
13.01 (1) A buyer of a time share contract may cancel the contract by giving notice of cancellation not later than 7 days after the date on which the buyer received a copy of the contract.
(2) A notice of cancellation may be given by any method that a reasonable person would think is sufficient to give notice, including
(a) delivering it in person, and
(b) sending it by registered mail, ordinary mail, electronic mail or fax, to
(i) the seller, or
(ii) the address, electronic mail number or fax number shown in the contract for the person named in the contract as a person to whom notice of cancellation may be given.
(3) A written notice of cancellation is sufficient if it indicates, in any way, the intention of the buyer to cancel the contract.
(4) A copy of the time share contract must be provided to the buyer at the time of signing, and must contain
(a) a notice, in prescribed form, in bold and in at least 12 point type, of the buyer's right to cancel the time share contract within 7 days of receiving a copy of the contract, and
(b) the name and mailing address of the seller or persons to whom notification of cancellation may be given.
(5) A buyer may cancel a time share contract at any time if the time share contract does not comply with subsection (4).
(6) If a written notice of cancellation is given by mail, electronic mail or fax, it is considered to be given at the time it is mailed or sent.
3 Section 14 (1) is amended by striking out "13 (1)," and substituting "13 (1) or 13.01 (1),".
4 Section 18 is amended
(a) by repealing subsection (1) and substituting the following:
(1) A refund that is required to be made by a seller to a buyer under section 14, 16 or 17, or by a seller to an individual under section 39.1, is recoverable as a simple contract debt. ,
(b) in subsection (4) by adding "or in an action by an individual against a seller under section 39.1 for a refund," after "16 or 17,", and
(c) by adding the following:
(5) A seller has a defence to an action under subsection (1) of this section for a refund referred to in section 39.1, and has a defence to an action under subsection (4) of this section in relation to that refund, if the seller proves to the court that
(a) the negative option offer was made before the coming into force of section 39.1, and
(b) at the time of the offer, the seller did not know that the contract for the unsolicited service sold by the seller by means of the negative option offer might be made unenforceable by legislation.
(6) A seller has a defence to an action under subsection (4) for a failure to comply with the 30 day time limit for making a refund or giving a credit under section 39.1 (12), if the seller proves to the court that
(a) the seller made a reasonable attempt to comply with the 30 day time limit, or
(b) the seller had a reasonable belief that section 39.1 did not apply to the seller.
5 The following section is added:
25.82 The registrar may designate a person who may, in the absence of the registrar, exercise the powers and perform the duties of the registrar.
6 Part 3 is amended by repealing the heading to that Part and substituting:
Food Plan Contracts, Negative Option Offers and Disclosure Notices .
7 Section 39 (1) is amended by adding the following:
"goods", despite section 1, means tangible personal property and does not include services as defined in section 39.1; .
8 The following section is added to Part 3:
39.1 (1) In this section and section 39.2:
"negative option offer" means an offer to sell an unsolicited service to an individual by which the seller gives the individual notice to the effect that the seller will charge the individual, on or after January 26, 1995, for the service unless the individual instructs the seller not to provide the service;
"service" means the benefit to an individual of work done by a person, and without limiting that meaning, it includes
(a) the delivery of, or provision of access to, electricity, gas, water, cable television and other telecommunications, and
(b) a prescribed activity,
but it does not include the delivery of, or provision of access to, books, magazines, newspapers or petroleum products;
"unsolicited service" means a service provided to an individual who did not request that specific service.
(2) A contract for an unsolicited service sold by means of a negative option offer is not enforceable by the seller against an individual.
(3) For the purposes of this section and section 39.2, a contract is not sold by means of a negative option offer if the individual instructs the seller, orally or in writing, that the individual consents to the purchase of the service.
(4) Consent under subsection (3) cannot be given before the individual receives notice of
(a) a description of the specific service that is the subject of the negative option offer, and
(b) the price of that service.
(5) Consent under subsection (3) cannot be inferred from the individual's
(a) inaction,
(b) use of the service,
(c) consent to purchase another similar service, or
(d) payment for the service.
(6) Subsection (2) applies to a change to an individual's existing service only if
(a) the change is made pursuant to a negative option offer, and
(b) without the consent of the individual, the change
(i) provides a new, unsolicited service for which an extra charge is made, or
(ii) reduces an existing service without reducing the price proportionately.
(7) Subsection (2) does not apply to
(a) a change to the price of an existing service, or
(b) a renewal of an existing service
if the service is not otherwise changed.
(8) An individual who pays for an unsolicited service under a contract that is unenforceable because of subsection (2), may demand that the seller refund the payment.
(9) An individual's right to demand a refund ends 2 years after the individual
(a) received the disclosure notice referred to in section 39.2, or
(b) first received the service, if no disclosure notice is received during the 2 years after the service is received.
(10) A demand for a refund made by an individual to a seller under sub-section (8)
(a) must be given in writing to the seller, and
(b) is sufficient, however it is expressed, if it indicates the intention of the individual to demand a refund of a payment made for a service that was sold by means of a negative option offer.
(11) If an individual sues a seller under section 18 (1) or (4) in respect of a refund referred to in subsection (8) of this section, the seller has a defence to the action if the seller can prove to the court that, at the time the individual paid for the service, the individual
(a) knew that he or she was receiving the service pursuant to a negative option offer, and
(b) was receiving a benefit from the service.
(12) If a seller receives a demand for a refund from an individual under this section, the seller must, within 30 days after receiving the demand,
(a) mail or deliver a refund of any payment received from the individual for the unsolicited service that was sold by means of the negative option offer, or
(b) with the individual's consent, give the individual a full credit towards subsequent services purchased from the seller.
(13) This section does not apply to a service or class of services or a seller or class of sellers that is exempted by regulation.
9 The following section is added to Part 3:
39.2 (1) Within 60 days of providing an unsolicited service to an individual, sold by means of a negative option offer, the seller must provide a disclosure notice to the individual setting out the following:
(a) a description of the service;
(b) the price of the service;
(c) the timing of payments for the service;
(d) the date the service starts;
(e) how to cancel the service, including an address to which a letter of cancellation may be sent;
(f) a statement that, under section 39.1 of the Consumer Protection Act, an individual
(i) is not required to pay for this service unless the individual has explicitly consented to receiving it, and
(ii) may have a right, for 2 years, to make a written demand for a refund.
(2) A seller must ensure that any disclosure notice provided by the seller meets the following requirements:
(a) it must be written in at least 12 point type;
(b) it must be visually clear and written in a manner that is readily understandable by a reasonable consumer of the service;
(c) it must not contain, or be mailed with, promotional materials.
10 Section 58 (1) (a) is amended by adding ", 39.2 (1) or (2)" before "or 47 (3)".
11 Section 60 is amended
(a) in subsection (1) by striking out "and" at the end of paragraph (x), and by adding the following:
(z) prescribing a service or class of services or a seller or class of sellers to which section 39.1 does not apply, and a regulation made under this paragraph may be made retroactive to January 26, 1995; and
(z.1) prescribing an activity that is a service for the purposes of the definition of "service" under section 39.1 (1), and a regulation made under this paragraph may be made retroactive to January 26, 1995. , and
(b) by adding the following subsection:
(3) A regulation made under subsection (1) (g) may provide that the exemption does not apply to section 39.1, and the provision that the exemption does not apply to section 39.1 may be made retroactive to January 26, 1995.
12 (1) Sections 4 and 6 to 11 come into force by regulation of the Lieutenant Governor in Council.
(2) When brought into force by regulation, sections 6 to 8 are deemed to have come into force on January 26, 1995 and are retroactive to the extent necessary to give them effect on and after that date.
SECTION 1: [Consumer Protection Act, amends section 1] narrows the definition of "direct sale" and "direct seller" and provides a definition of "time share contract" consequential to the new section 13.01 of the Consumer Protection Act introduced by this Bill.
SECTION 2: [Consumer Protection Act, adds section 13.01] provides a right of cancellation for buyers of time share contracts.
SECTION 3: [Consumer Protection Act, amends section 14] requires the seller and buyer of a time share contract that is cancelled to return money or other goods held under the contract.
SECTION 4: [Consumer Protection Act, reenacts section 18] is consequential to the provision for refunds under section 39.1 of the Consumer Protection Act, added by this Bill.
SECTION 5: [Consumer Protection Act, adds section 25.82] authorizes the registrar of direct sellers to designate a replacement in the registrar's absence.
SECTION 6: [Consumer Protection Act, reenacts the title to Part 3] retroactively amends the title to Part 3 of the Consumer Protection Act, consequential to the addition of sections 39.1 and 39.2 to that Part, under this Bill.
SECTION 7: [Consumer Protection Act, amends section 39 (1)] retroactively defines "goods" for the purposes of section 39.1 of the Consumer Protection Act.
SECTION 8: [Consumer Protection Act, adds section 39.1] retroactively provides that
SECTION 9: [Consumer Protection Act, adds section 39.2] provides that a seller of an unsolicited service that is provided through a negative option offer must mail a disclosure notice to the individual.
SECTION 10: [Consumer Protection Act, amends section 58] makes it an offence to contravene section 39.2 (1) or (2) of the Consumer Protection Act, added by this Bill.
SECTION 11: [Consumer Protection Act, amends section 60] adds regulation making powers consequential to section 39.1 of the Consumer Protection Act, added by this Bill, and provides for retroactivity.
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