Stewart McKelvey

TRADE LAW IN THE ATLANTIC PROVINCES The SGAs contain implied terms as to the quality of goods, including implied warran- ties and conditions. In New Brunswick, the Consumer Product Warranty and Liability Act (NB-CPWLA) provides that any state- ment made by a supplier, whether written, oral or in advertising, becomes an express warranty if the buyer reasonably relies upon it in purchasing a product. It also establishes a number of implied warranties covering title, quality and fitness. Consumer protection The Atlantic provinces have passed a variety of acts and regulations dealing with consumer protection. Newfoundland and Labrador recently consolidated its consumer protection legislation into a single enact- ment, the Consumer Protection and Business Practices Act (NL-CPBPA). It prohibits unfair and unconscion- able business practices and provides a right of action against a supplier when a consumer has suffered dam- age as a result of an unfair trade practice or uncon- scionable act or practice. The NL-CPBPA also regulates "distant sales con- tracts" — those that are not entered into in person and for which, with respect to goods, the consumer does not have an opportunity to inspect the goods before entering into the contract, including contracts entered into electronically. Nova Scotia has implemented the Internet Sales Contract Regulations, which also pro- vide protection for consumers purchasing items over the Internet. Nova Scotia, Prince Edward Island and New Brunswick have all enacted similar unconscionable transactions relief acts which, like the NL-CPBPA, provide relief to debtors in circumstances where a court finds the cost of the loan to be "excessive" and the transaction to be harsh and unconscionable. In PE, the Business Practices Act prohibits unfair practices and allows a consumer to rescind an unfair agreement and seek damages or recover the difference between the amount paid and the fair market value. Each of the Atlantic provinces also has legislation specifying borrowing cost disclosure requirements that must be complied with by businesses that ex- tend credit. Each province also regulates "direct sales con- tracts," i.e., those sales that are negotiated or con- cluded in person at a place other than the suppli- er's place of business or a market place or similar venue. 6 SPRING 2011 DOING BUSINESS IN ATLANTIC CANADA The NB-CPWLA contains a product liability section which im- poses liability on a supplier for losses suffered by consumers as a result of defective consumer prod- ucts, irrespective of any contract or negligence, where the loss was rea- sonably foreseeable at the time of the supply as liable to result from the defect. The other Atlantic prov- inces do not have legislation specifically addressing product liability. Each of NS, NB and NL has passed legislation to permit class action lawsuits which may be used to advance product liability claims advanced under common law legal principles. Nova Scotia (like Alberta, Saskatchewan, Manitoba, Ontario, and Que- bec) allows all qualified class members to participate in the class action unless they take steps to "opt-out," whereas New Brunswick and Newfoundland, like British Columbia, are "opt-in" jurisdictions, meaning that a plaintiff who is not a resident of the province must take positive steps to join the action. NB, NS and PE have enacted legislation to regu- late the issuance of gift cards, which contain restric- tions on disclosure of limitations on use, expiry dates and fees generally consistent with other Canadian jurisdictions. The NL-CPBPA was recently amended to permit the enactment of regulations respecting such cards. Franchises For several years, Prince Edward Island was the only Atlantic province with legislation specifically dedi- cated to the regulation of franchises. However, New Brunswick's Franchises Act came into force on Febru- ary 1, 2011. PE's Franchises Act closely follows Ontario's fran- chise legislation, and includes changes that were sug- gested in the Uniform Law Conference of Canada's Uniform Franchise Act. The NB act is modeled closely on the PE act. A unique element of the NB act is the right of either party to a franchise agreement to re- quire mediation of a dispute, although this does not preclude the exercise of other rights relating to the dispute. Deanne MacLeod Halifax, NS 902.420.3313 dmacleod@smss.com

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