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Friday, April 18, 2014
Saskatchewan Justice

The Consumer Protection Act is a consolidation of consumer protection legislation. Part II of the Act offers protection to Saskatchewan consumers from unfair marketplace practices. Part III of the Act is the former Consumer Products Warranties Act. Part IV.1 is based on model legislation approved in May 2001 by Canadian federal, provincial and territorial ministers responsible for consumer affairs. The model legislation harmonizes consumer protection legislation in electronic commerce to ensure that consumers benefit from equal protection across Canada. Part IV.2 provides for future performance contracts. Part IV.3 covers personal development services contracts. Part IV.4 provides new rules for travel club contracts. Part IV.5 provides new rules for distance contracts that are entered into by phone or by mail. Part IV.6 protects consumers who purchase and use gift cards and certificates ("prepaid purchase cards").

The Act also sets out consumer responsibilities, including the duty to first make a reasonable effort to minimize any loss resulting from an unfair practice and to attempt to resolve a dispute with a supplier before taking further action.

Unfair practices
The Act makes it an offence for a supplier (retailer, manufacturer or distributor) to engage in an unfair practice by making a false claim or by doing or saying anything, or failing to do or say anything, if that might reasonably deceive or mislead a consumer. It also makes it an unfair practice for a supplier to take advantage of a consumer not in a position to protect their own interests. It gives the Director of Consumer Protection the authority to take action before someone has actually suffered a loss as a result of an unfair practice.

For example, it is an unfair practice for a supplier to:

  • represent that goods or services are of a particular standard, quality, grade, style, model, origin or method of manufacture if they are not; 
  • represent that goods or services are available or are available for a particular reason, price, quantity, or at a particular time if the supplier knows or can reasonably be expected to know it is not so, unless the representation clearly states any limits;
  • charge a price for goods or services that is substantially higher than an estimate provided to the consumer, except where the consumer has expressly agreed to the higher price in advance;
  • take advantage of a consumer by including in a consumer agreement terms or conditions that are harsh, oppressive or excessively one-sided; or
  • take advantage of a consumer by exerting undue pressure or undue influence on the consumer to enter into a transaction involving goods or services.

Remedies
A consumer who has suffered a loss as a result of an unfair practice may commence an action in court against a supplier. However, the Act provides a range of other options, such as mediation, to encourage consumers and businesses to resolve their own disputes without proceeding to litigation or charges. If these efforts fail, the Act provides for a series of remedies that depend on the severity of the breach. For example, it provides for:

  • the Director, where the Director believes it to be in the public interest, to take action on behalf of disadvantaged or vulnerable consumers. This includes an action against a supplier in Saskatchewan when the unfair practice occurred outside Saskatchewan;
  • voluntary agreements for compliance between a supplier and the Director;
  • the court to order restitution; and
  • an application by the Director to the court for an injunction.

Warranties
Under Part III of the Act, Consumer Products Warranties, retailers are deemed to give minimum warranties known as statutory warranties whenever they sell a new or used consumer product. The minimum statutory warranties include that:

  • the product belongs to the buyer without undisclosed liens or other claims;
  • the product is of acceptable quality;
  • the product is reasonably durable and fit for the use intended as well as for any specific purpose stated by the retailer;
  • the product matches its description and the quality of any samples shown to the consumer; and
  • spare parts and repair facilities will be available for a reasonable period of time.

Anyone who buys the product from the original consumer, receives it as a gift, or receives it by law is deemed to be given the same warranties by the seller or manufacturer as the original purchaser.

Saskatchewan's legislation also sets out additional warranties and conditions. A seller or manufacturer may make an express warranty either orally, in writing, or through advertising. This warranty relates to the sale or to the quality, quantity, condition, performance, efficiency, use, or maintenance of a product. A seller or manufacturer may make an additional written warranty which is a written warranty to repair, replace or make a refund.

A seller is deemed to accept any express warranties on labels or packages unless the consumer is told, prior to the sale, that the seller does not accept them. A seller does not accept warranties in advertising produced by the manufacturer unless the seller expressly or impliedly adopts them.

Remedies
If a breach of a warranty is not of a substantial nature:

  • it is to be remedied by the warrantor (seller or manufacturer) within a reasonable time; or
  • if the warrantor does not do so, the consumer may have it remedied and recover the cost from the manufacturer or seller; and
  • a consumer is entitled to recover damages for any foreseeable loss arising from the breach, whether or not the breach is remedied.

A substantial breach occurs if the product differs substantially from what consumers can reasonably expect or if it is totally or substantially unfit for all the usual purposes of such a product. In the case of a more substantial breach, a consumer:

  • may exercise the same rights as for a non-substantial breach; or
  • may reject the goods within a reasonable time; and
  • is entitled to the return of the purchase price and damages for any foreseeable losses.

If repairs are to be done under warranty, the consumer is required to return the goods to the warrantor. If the product can not be removed and transported without significant cost to the consumer, the warrantor must pay this cost or pay to have the product repaired where it is located.

A consumer who is injured as a result of a breach of a statutory warranty is entitled to recover damages from the warrantor.

A consumer, or a subsequent owner of a product, may be awarded exemplary damages if a warrantor deliberately fails to obey the Act.

Retail sellers, in turn, have the right to recover from the manufacturer any losses suffered as a result of a consumer's claim against them.

Unsolicited Goods
Part IV of the Act, Unsolicited Goods, provides that when unasked for goods are received, the recipient has no legal obligation to the sender to pay for these unsolicited goods unless the recipient has first acknowledged, in writing, that he or she intends to accept the goods.

Internet Sales Contracts
In Part IV.1, rules are established for online contracts - shopping on the Internet. These rules apply to Saskatchewan residents and to non-residents purchasing goods or services exceeding $50 online from Saskatchewan businesses. For example:

  • a seller's contract must provide certain mandatory disclosure information, including a description of any additional charges that may apply to the contract such as customs duties and brokerage fees and that can not be reasonably estimated at the time;
  • a supplier must give a consumer a written or electronic copy of the contract within 15 days after the agreement was entered into;
  • a consumer may cancel a contract:
    • at any time after the contract is entered into until 7 days after receiving a copy of the contract if:
      • the disclosure requirements under the Act were not met; or
      • the consumer was not given an opportunity to accept or decline the contract, or to correct errors before entering into the contract;
    • within 30 days after entering into it if a copy of the contract is not received from the seller within 15 days; or
    • at any time before the goods are delivered or the services begun if:
      • the goods are not delivered or the services (other than travel, transportation or accommodation services) are not begun within 30 days after the date or amended date agreed to; or
      • travel, transportation or accommodation services are not begun on the date or amended date agreed to; or
      • a delivery date or a commencement date is not provided in the contract; and
      • the supplier does not deliver the goods or begin the services within 30 days after the date the contract was entered into;
    • there is a mandatory mechanism for chargebacks to credit cards if the contract was properly cancelled but the refund was not received from the internet seller within the required 15 days.

Future Performance Contracts, Personal Development Service Contracts, Travel Club Contracts, and Remote Contracts
Parts IV.2, IV.3, IV.4 and IV.5 of the Act set out new rules for agreements that involve future performance, personal development services, travel clubs and remote contracts.

In future performance contracts, the delivery of the goods or services or the payment for the goods or services is not completely made when the parties enter into the contract. Personal development services contracts are contracts for services related to health, fitness, dieting, modelling, talent, martial arts, sports, dancing or similar activities that require payment in advance. Under travel club contracts, a consumer, through a membership in a travel club or vacation club, acquires the right to discounts or other benefits on the purchase of transportation, accommodation, or other services related to travel. Remote contracts are contracts where the consumer and the supplier are not present together (e.g., agreements made by phone, fax or mail).

The Act provides common rules governing these contracts, including:

  • requiring contracts to be in writing and to contain specific information;
  • setting out the time period and manner in which a contract must be provided to a consumer; and
  • setting out the manner in which notice of cancellation of a contract must be given by the consumer to the supplier.

The Act also provides specific rules for certain contracts. For example:

  • limiting the term of personal development services contracts to no more than two years and prohibiting suppliers from requiring or accepting prepayment of fees for any periods totalling more than 12 months;
  • prohibiting a supplier from receiving payment for personal development services that are not available at the time the payment is made except if the payment is made to a trust corporation;
  • requiring suppliers to give consumers the option to pay monthly instalments;
  • limiting the term of travel club contracts to no more than one year;
  • prohibiting travel club operators from requiring or accepting prepayment of fees in an amount greater than the prescribed amount; and
  • allowing a consumer who makes a remote purchase using a credit card to obtain a refund from the credit card company, if the supplier fails to provide a refund after the consumer has exercised a right of cancellation.

Remedies
A consumer may cancel a future performance contract:

  • at any time after the contract is entered into until 1 year after receiving a copy of the contract if the disclosure requirements under the Act were not met; or
  • at any time before the goods are delivered or the services begun if:
  • the goods are not delivered or the services are not begun within 30 days after the date or amended date agreed to; or
  • a delivery date or a commencement date is not provided in the contract, and the supplier does not deliver the goods or begin the services within 30 days after the date the contract was entered into.

A consumer may cancel a personal development services contract:

  • without reason, within 7 business days after:
  • receiving the written copy of the contract; or
  • the day on which all services to be provided under the contract are available, whichever is the later;
  • within 1 year after the date on which the contract was entered into if the disclosure requirements under the Act were not met; or
  • at any time if there has been a specified material change in the circumstances of the consumer or the supplier.

A consumer may cancel a travel club contract:

  • without reason, within 10 days after receiving a copy of the contract; or
  • within 1 year after the date the consumer entered into the contract if the disclosure requirements under the Act were not met; or
  • at any time if the services, discounts or other benefits to be provided under the contract become unavailable or substantially unavailable as a result of:
    • a substantial change in the operation of the travel club; or
    • the supplier discontinued operations.

A consumer may cancel a remote contract:

  • at any time after the contract is entered into until 7 days after receiving a copy of the contract if the disclosure requirements under the Act were not met; or
  • at any time before the goods are delivered or the services begun if:
    • a delivery date or commencement date is not specified in the contract, and the goods are not delivered or the services are not begun within 30 days after the date the contract is entered into; or
    • the goods are not delivered or the services (excluding travel, transportation or accommodation services) are not begun within 30 days after the date or amended delivery date agreed to; or
    • travel, transportation or accommodation services are not begun on the date or amended date agreed to.

Gift Cards
Part IV.6 of the Act sets out rules regarding gift cards and gift certificates (prepaid purchase cards). With some exceptions, it:

  • prohibits expiry dates on most gift cards and certificates;
  • requires disclosure of terms and conditions on gift cards and certificates;
  • prohibits suppliers from charging inactivity or dormancy fees that reduce the value of a gift card or gift certificate if it is not used within a certain period of time;
  • prohibits any other fees that may be charged in relation to gift cards or certificates unless authorized in the regulations; and
  • provides that any agreement, whether verbal, written, express or implied, that the benefits of the Act do not apply or are not available, is void. A consumer may recover any money paid under such an agreement by commencing an action in court.

Expiry dates, and inactivity or dormancy fees will be allowed for cards that have been issued for a charitable purpose or if the consumer has provided nothing of value in exchange for the card. Fees are allowed to customize a card or to replace a lost or stolen card.

When a prepaid purchase card is issued or sold, the supplier must give the consumer the following information:

  • a description of all restrictions, limitations and conditions on the use of the card, including any fee or expiry date permitted in the Act; and
  • a description of the way in which the consumer can obtain information about the card, including any remaining balance.

Remedies
The Director or the court has investigatory powers under the Act, including the right to enter premises, and search and seize documents.

The Director may order a person who fails to comply with the Act:

  • to stop an act or to begin an act;
  • to comply with the Act; and
  • to do or stop doing any other thing the Director considers necessary.

The Director may apply to the court for:

  • an order directing the person and, in the case of a corporation or partnership, the directors and officers or the partners, to comply with the Act or preventing that person from contravening the Act; and
  • any other order or remedy the Director may request.

The court may make any order it considers necessary.



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