Government proposes changes to Consumer Protection Act to ban planned obsolescence
On June 1, 2023, the Minister of Justice introduced Bill 29: An Act to protect consumers against planned obsolescence and to promote the durability, repairability and maintenance of goods, proposing amendments to the Consumer Protection Act (hereinafter "the Act"). In addition to prohibiting the sale of goods whose obsolescence is planned, the bill introduces a legal warranty of good working order for certain commonly used new goods.
Other proposed changes include an enhancement of the legal guarantee of available replacement parts, an obligation on merchants to provide information on the legal guarantee of good working order before entering into a contract that includes an additional guarantee, an increase in the amount of penal fines, and the possibility of imposing monetary administrative penalties for breaches of the Act's provisions. The bill also covers new protections related to the purchase of used automobiles.
In its current form, the bill would result in major changes to the warranty and display obligations of merchants and manufacturers. These new obligations would also give rise to interesting interpretation debates in court, particularly with regard to class actions.
Protection against planned obsolescence
First of all, the bill aims to prohibit the business of trading in goods for which obsolescence is planned. This prohibition concerns both the merchant and the manufacturer, since the latter is deemed to carry on such business.
The obsolescence of a good is planned where a technique aimed at reducing its normal operating life is used on them. Similarly, the use by a merchant or manufacturer of techniques that make it more difficult for consumers to maintain or repair goods is also prohibited.
The onus seems to be on the consumer to prove the use of such a technique. Such proof would be difficult to establish, and would most likely require expert advice. Furthermore, since the technique used to manufacture a good is necessarily the responsibility of its manufacturer, the merchant is not in the best position to offer a defense.
Changes to legal warranties
Secondly, the bill introduces two important changes to legal warranties:
1- a new legal warranty of good working order for certain new goods; and
2- an improvement to the legal guarantee of available replacement parts and repair services for goods of a nature that requires maintenance work.
The legal warranty of good working order is, as its name suggests, a guarantee that the new good purchased or leased will function for a certain period of time, which will vary according to the good in question.
- The warranty will apply to certain new goods, a non-exhaustive list of which is already contained in the bill. These include: stoves, refrigerators, freezers, washing machines, dishwashers, laptops, tablets, cell phones, video game consoles, air conditioners and heat pumps. In addition, the bill gives the government the regulatory power to make any other specified good subject to the warranty.
- As for the duration of the warranty, this will be set by regulation and will vary according to the good concerned. It remains to be seen how the Minister will go about setting the duration of good working order for a given item, an exercise that promises to be difficult and will once again require technical analysis. Indeed, even for a given type of good, the expected service life will vary according to the range and price paid. For example, can we expect an air conditioner costing $1,000 to work as long as one costing $10,000?
- The bill introduces certain defenses available to merchants and manufacturers of goods that offer this warranty. For example, the warranty does not apply if the malfunction is the result of misuse by the consumer. Furthermore, the warranty does not cover normal maintenance and replacement of parts. As a result, the manufacturer and merchant are not liable if the good ceases to function properly due to the "normal" breakage of a part. Here again, the concept of normal breakdown is difficult to define, since it depends on a large number of factors.
- Finally, the warranty of good working order imposes new obligations on manufacturers and merchants in terms of information disclosure and display. Manufacturers of goods covered by the warranty of good working order must disclose information relating to the good’s respective warranty in the manner and under the conditions prescribed by regulation. Merchants, for their part, must prominently display the duration of the object’s warranty near the advertised price for each good concerned, and must also provide consumers with information relating to this warranty. In doing so, merchants will have to review all the labels used for the sale of the goods in question, with a view to adding warranty information.
Meanwhile, the legal guarantee of availability of replacement parts and repair services for goods of a nature that requires maintenance work is enhanced by imposing a new obligation to pass on the information needed to maintain or repair the good.
This means that manufacturers and merchants must instruct consumers on how to maintain and repair their goods. However, they may be released from this obligation if they notify the consumer in writing, prior to the conclusion of the contract, that it does not provide spare parts, repair services or information necessary for the maintenance or repair of the good. This exemption does not apply to prescribed information. Merchants could potentially have the consumer sign a document attesting to this to avoid any evidentiary issues in the event of a future consumer claim.
In addition, spare parts for goods requiring maintenance work must be able to be installed using commonly available tools and without causing irreversible damage to the good.
Finally, the bill proposes two changes in terms of penalties for individuals and corporations who contravene the obligations of the law:
- a new system of administrative monetary penalties and;
- an enhancement of existing criminal monetary penalties.
The administrative monetary penalties regime allows the President of the Office de la protection du consommateur (hereinafter "the Office") to impose a fine for up to two years from the date of the breach, or for up to two years from the date of the breach in the case of misrepresentation. Thus, without the need to initiate criminal proceedings, this regime provides an additional tool available to the Office to sanction breaches of the Act. Furthermore, when the party responsible for a breach defaults on payment, its directors and officers may be held jointly and severally liable for the penalty, unless they exercised prudence and diligence to prevent the breach. The payment of an administrative monetary penalty is also automatically secured by a legal hypothec on the movable and immovable property of the person responsible for the default and, where applicable, of each of his directors and officers held jointly and severally liable with him for payment. These sanctions appear to be largely inspired by those recently included in the new version of the Charter of the French Language resulting from Bill 96.
The system of penal sanctions, for its part, enables the Office to recommend penal proceedings, which are then instituted by the Director of Criminal and Penal Prosecutions. This system, which is already included in the law, is enhanced by raising the thresholds for minimum and maximum fines. The pecuniary benefit derived from the commission of the offence can also be taken into account when calculating the value of the thresholds. In addition, breaches of information and posting obligations are punishable by fines ranging from $1,500 to $37,500 for individuals, and from $3,000 to $75,000 in other cases.
Bill 29, if adopted in its current form, is likely to change the landscape of consumer law in Quebec, which finds itself standing apart from other Canadian provinces. It will be interesting to follow its progress through the National Assembly, as many questions remain about the changes it envisages. Let's hope that the next parliamentary stages will shed more light on the legislator's intention behind these new provisions.
In particular, the role of the new warranty of good working order is questionable, since it seems to overlap with the legal warranty of quality of the good, commonly known as the warranty against hidden defects. Indeed, this warranty, provided for both in the Civil Code and in the current version of the Act, already stipulates that the use of a good must meet the legitimate expectations of the consumer who acquires it, and is already intended to guarantee the durability of the good. It will be interesting to see what this warranty actually adds to current law.
 See for example : Fortin c. Mazda Canada inc., 2016 QCCA 31, paras. 56 ff.
Bill 29 Planned obsolescence