Trade practices legislation : the British Columbia experience

The innovative features of the recently enacted British Columbia Trade Practices Act have been widely acclaimed, but have received little critical appraisal by legal writers. The Act provides wide-ranging protection to consumers from undesirable business acts and practices, making relief readily available through both new and traditional enforcement mechanisms. This thesis examines the interpretation given to the Act's major provisions, and considers what the Act has in fact accomplished for consumers in this province. The discussion is placed in the wider context of the protection that consumers should be given from deceptive and unfair practices, contrasting this with the inadequate remedies at common law. It is shown that the Act has not always been fully accepted or liberally interpreted by the courts. The definition of deceptive practices has been narrowly applied by some judges, and the wide timing of the provision overlooked. The need, for some procedural defect to invoke the unconscionability provision has been strictly adhered to, despite the fact that the Act invites judges to emphasize matters of substantive unfairness. These problems have been complicated by the Act's poor drafting, and the lack of strong test cases. These difficulties aside, the Trade Practices Act has accomplished much for consumers in this province. Active enforcement of the Act's administrative remedy, the assurance of voluntary compliance, provides the visible evidence of its successful implementation. But it is shown that it is at the informal level that the Act has been most useful. It had provided consumers with considerable bargaining leverage, and the mediation efforts of the Ministry of Consumer and Corporate Affairs have often alone achieved results. The Act's very existence has had a strong deterrent effect on the entire marketplace. It is argued that these informal aspects are in fact more important than the formal resolution mechanisms in the consumer field, but that the latter are required to give strength to them. In attempting to provide British Columbia consumers with maximum protection, the Trade Practices Act is too onerous on suppliers in respect of its adoption of a strict liability test for deception according to the civil standard. It is argued that a limited defence in cases of innocent deception would be fairer and would not compromise the needs of consumers. A model defence is proposed. The Act is not without its weaknesses too. There is a strong need to provide better protection from substantive unfairness and from consumer abuses not directly tied to a consumer transaction. The Act also needs to be enforced more effectively. The Ministry's policies and priorities require reassessment, and there have been difficulties arising from the selection of the courts as the enforcement forum. Further administrative remedies are considered. Small claims courts have proved unsatisfactory for the resolution of consumer disputes, and the question arises as to what are suitable alternatives. Both traditional and non-traditional approaches are reviewed. It is concluded that while restructuring the present court system would bring improvements, introducing an arbitration model tailored to consumer needs would be better.

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