Definitions

1  In this Act:

"business premises" does not include a dwelling house;

"consumer" means an individual, whether in British Columbia or not, other than a supplier, who participates in a consumer transaction, and includes a guarantor or donee of that individual;

"consumer transaction" means any of the following:

(a) a sale, lease, rental, assignment, award by chance or other disposition or supply of any kind of personal property or real property to an individual for purposes that

(i)  are primarily personal, family or household, or

(ii)  relate to a first time business opportunity scheme;

(b) a solicitation or promotion by a supplier with respect to a transaction referred to in paragraph (a);

(c) a solicitation of a consumer by a person requesting any of the following:

(i)  a contribution of money by the consumer;

(ii)  a contribution of any other property by the consumer;

"court" means

(a) in relation to an action or application brought under section 18, the Supreme Court, and

(b) in relation to other matters, any court of competent jurisdiction;

"director" means the Director of Trade Practices appointed by the minister, and includes a person authorized in writing by the director to perform any of the director's duties and exercise any of the director's powers under this Act;

"estimate" means a representation about the future price of a consumer transaction;

"first time business opportunity scheme" means a business opportunity scheme

(a) in which the individual has not been previously engaged,

(b) for which the initial payment does not exceed $50 000 or another amount prescribed by the Lieutenant Governor in Council, and

(c) which requires

(i)  the expenditure of money and management services by the consumer, and

(ii)  the performance of personal services by the consumer or another person;

"interim injunction" includes an interlocutory injunction;

"media" means any means of communication and includes but is not limited to radio, television, billboards, newspapers, magazines, handbills, pamphlets and flyers;

"minister" includes a person designated in writing by the minister;

"personal property" means a right, title or interest in personal property, whether tangible or intangible and includes but is not limited to

(a) chattels that are or are intended to be attached to real property on or after delivery,

(b) services, and

(c) credit, including credit extended solely on the security of land,

but does not include securities as defined in the Securities Act or contracts of insurance under the Insurance Act;

"price" means the total obligation or consideration payable, given, undertaken or assumed by a consumer under a consumer transaction;

"representation" includes any term of a written contract or form of contract, notice or other document used or relied on by a supplier in connection with a consumer transaction;

"services" means services that are the subject of a consumer transaction, either together with, or separate from, any kind of property;

"supplier" means a person, whether in British Columbia or not, other than a consumer, who in the course of the person's business solicits, offers, advertises or promotes the disposition or supply of the subject of a consumer transaction or who engages in, enforces or otherwise participates in a consumer transaction, whether or not privity of contract exists between that person and the consumer, and includes the successor to, and assignee of, any rights or obligations of the supplier;

"unit" includes an identifiable part, portion or instalment of the entire consumer transaction or the consideration for or the subject matter of it.

 Advertising

2  (1)  A supplier who, on behalf of another person, prints, distributes, broadcasts, telecasts or otherwise publishes a deceptive or misleading advertisement is not liable under section 18, 22, or 25 if the supplier proves that the supplier

(a) received the advertisement for printing, distributing, broadcasting, telecasting or otherwise publishing in the ordinary course of business, and

(b) did not know and had no reason to suspect that its publication would contravene this Act.

(2)  A person who accepts an advertisement for printing, distributing, broadcasting, telecasting or otherwise publishing in the ordinary course of the person's business must, for each advertisement, maintain a record of the name and address of the person who provides the advertisement.

 Deceptive acts or practices

3  (1)  For the purposes of this Act, a deceptive act or practice includes

(a) an oral, written, visual, descriptive or other representation, including a failure to disclose, and

(b) any conduct

having the capability, tendency or effect of deceiving or misleading a person.

(2)  A deceptive act or practice by a supplier in relation to a consumer transaction may occur before, during or after the consumer transaction.

(3)  Without limiting subsection (1), one or more of the following, however expressed, constitutes a deceptive act or practice:

(a) a representation that the subject of a consumer transaction has sponsorship, approval, performance characteristics, accessories, ingredients, quantities, components, uses or benefits that it does not have;

(b) a representation that the supplier has a sponsorship, approval, status, affiliation or connection that the supplier does not have;

(c) a representation that the subject of a consumer transaction is of a particular standard, quality, grade, style or model if it is not;

(d) a representation that the subject of a consumer transaction has been used to an extent that is different from the fact;

(e) a representation that the subject of a consumer transaction is new or unused if it is not, or if it is deteriorated, altered, reconditioned or reclaimed;

(f) a representation that the subject of a consumer transaction has a particular prior history or usage if it has not;

(g) a representation that the subject of a consumer transaction is available for a reason that is different from the fact;

(h) a representation that the subject of a consumer transaction has been made available in accordance with a previous representation if it has not;

(i) a representation that the subject of a consumer transaction is available if the supplier has no intention of supplying or otherwise disposing of the subject as represented;

(j) a representation that is such that a person could reasonably conclude that a price benefit or advantage exists, if it does not;

(k) a representation that a service, part, replacement or repair is needed if it is not;

(l) a representation that the purpose or intent of a solicitation of, or a communication with, a consumer by a supplier is for a purpose or intent different from the fact;

(m) a representation that a consumer transaction involves or does not involve rights, remedies or obligations if the representation is deceptive or misleading;

(n) a representation such that a consumer might reasonably conclude that the subject of a consumer transaction is available in greater quantities than are in fact available from the supplier, unless the limitation of availability represented by the supplier has been given reasonable prominence;

(o) a representation about the authority of a salesman, representative, employee or agent to negotiate the final terms of a consumer transaction if the representation is different from the fact;

(p) if an estimate of the price of a consumer transaction is materially less than the price of the consumer transaction as subsequently determined or demanded by the supplier and the supplier has proceeded with performance of the consumer transaction without the express consent of the consumer;

(q) if the price of a unit of a consumer transaction is given in an advertisement, display or representation, the failure to give, in the same advertisement, display or representation, prominence to the total price of the consumer transaction;

(r) the use, in an oral or written representation, of exaggeration, innuendo or ambiguity about a material fact, or failure to state a material fact, if the representation is deceptive or misleading;

(s) the other acts or practices prescribed by the regulations.

 Unconscionable acts or practices

4  (1)  An unconscionable act or practice by a supplier in relation to a consumer transaction may occur before, during or after the consumer transaction.

(2)  In determining whether an act or practice is unconscionable, a court must consider all the surrounding circumstances that the supplier knew or ought to have known.

(3)  Without limiting subsection (2), the circumstances that the court must consider include the following:

(a) that the consumer was subjected to undue pressure to enter into the consumer transaction;

(b) that the consumer was taken advantage of by the consumer's inability or incapacity to reasonably protect his or her own interest because of physical or mental infirmity, ignorance, illiteracy, age or inability to understand the character, nature or language of the consumer transaction, or any other matter related to it;

(c) that, at the time the consumer transaction was entered, the price grossly exceeded the price at which similar subjects of similar consumer transactions were readily obtainable by similar consumers;

(d) that, at the time the consumer transaction was entered, there was no reasonable probability of full payment of the price by the consumer;

(e) that the terms or conditions on, or subject to, which the consumer transaction was entered by the consumer are so harsh or adverse to the consumer as to be inequitable;

(f) the other circumstances prescribed by the regulations.

(4)  If there is an unconscionable act or practice in respect of a consumer transaction, that consumer transaction is unenforceable by the supplier.

(5)  Nothing in this section limits, restricts or derogates from the court's power and jurisdiction.

 Director's duties and powers

5  (1)  The director must do all of the following:

(a) under the direction of the minister, enforce this Act and the regulations;

(b) receive and act on complaints about consumer transactions;

(c) inform consumers and suppliers on a continuing basis of the provisions of this Act and the regulations and of their rights and duties;

(d) publish as advisable or on direction of the minister reports about the administration and enforcement of this Act and the regulations;

(e) maintain public records of all of the following:

(i)  enforcement proceedings taken under this Act or the regulations;

(ii)  judgments and interim or permanent orders or injunctions rendered under this Act;

(iii)  written undertakings or assurances entered under this Act.

(2)  The director may attempt to resolve complaints under subsection (1) (b) by mediation or by other methods acceptable to the parties.

 Research, hearings

6  The director may conduct research, hold public hearings, make inquiries and publish studies about consumer transactions.

 Advisers

7  The minister may, or, if authorized by the minister in writing, the director may, notwithstanding the Public Service Act, retain specialists, consultants or advisers considered necessary to assist the minister and the director in the administration of this Act, and may determine their remuneration.

 Repealed

8  [Repealed 1998-23-18.]

 Director's investigation of deceptive or unconscionable acts

9  (1)  If, by the director's own inquiries, or as a result of complaints, the director has reason to believe that a person has engaged in, is engaging in or is about to engage in a deceptive or unconscionable act or practice respecting a consumer transaction, the director may investigate the matter and request that the person provide information to the director about the matter.

(2)  The request under subsection (1) must give reasonable particulars of the consumer transaction and indicate the nature of the inquiry or complaint.

 Investigation by order of director

10  (1)  If the director believes, on reasonable and probable grounds, that a person has contravened, is contravening or is about to contravene this Act or the regulations or an order made under this Act, or an undertaking or assurance made or given under this Act, the director may order a full investigation of the matter by himself or herself or a person appointed by the director to investigate the matter.

(2)  For the purposes of subsection (1)

(a) reasonable particulars of the matter to be investigated must be set out in the order, and

(b) if a person is appointed by the director, the person must conduct a full investigation of the matter and report the results of the investigation to the director.

(2.1)  If the director believes that a person may have information, materials, documents or things relevant to the subject matter of an investigation, the director may do one or more of the following:

(a) at a time and place the director specifies, require a person to provide information in a form or manner specified by the director, provide answers to interrogatories, answer questions or produce materials, documents or things in the person's possession or control that relate to an investigation;

(b) make copies of information furnished or a document or thing produced under this section;

(c) summon before the director and examine on oath any person who the director believes is able to provide information relevant to an investigation;

(d) receive and accept, on oath or otherwise, evidence the director considers appropriate, whether or not it would be admissible in a court;

(e) prepare interrogatories and order them to be answered by a person, sworn to or affirmed by the person in the form of affidavit provided by the director and returned to the director in the manner the director orders.

(2.2)  A person from whom interrogatories are required under subsection (2.1) must sign the interrogatories and, if an affidavit is required by the director, must sign and swear to or affirm the affidavit stating that the information provided is a true answer to the interrogatories and that any materials, documents or things provided are the true materials, documents or things in the person's possession.

(2.3)  For the purposes of this Act, the director has the same power that the Supreme Court has for the trial of civil actions to do any of the following:

(a) to summon and enforce the attendance of witnesses;

(b) to compel witnesses to give evidence on oath or in any other manner;

(c) to compel witnesses to produce records and things.

(2.4)  When the director exercises a power under this section, a person who fails or refuses to do any of the following is liable, on application to the Supreme Court, to be committed for contempt as if in breach of an order or judgment of the Supreme Court:

(a) to attend;

(b) to take an oath or affirmation;

(c) to answer questions;

(d) to provide a full and adequate response to every interrogatory;

(e) to provide answers, information, materials, documents or other things in a form or manner specified in interrogatories or by an order of the director;

(f) to deliver interrogatories and the required answers, information, materials, documents or things with the required affidavit to the director as required by the director and to the place and within the time specified by the director.

(2.5)  Section 34 (5) of the Evidence Act does not apply to the exercise of powers of the director under this Act.

(2.6)  For the purposes of this section and section 17.1 service of a summons, order or demand to answer interrogatories is sufficient if served

(a) on any member of a partnership or firm,

(b) on the secretary of a company at its usual place of business or left with an adult person employed at the place of business,

(c) by registered mail on the solicitor of record or the authorized agent of the person, firm, partnership or company to be served,

(d) on a company in the manner permitted by the Business Corporations Act, or

(e) on an individual by personal service or by sending a copy of the interrogatories, summons or order by registered mail addressed to the usual residence of the person.

(2.7)  Service by registered mail under subsection (2.6) (c) or (e) is deemed to be effected on the 14th day after the document is sent by registered mail.

(2.8)  The Lieutenant Governor in Council may prescribe the form of and manner of responding to interrogatories and specify the kinds of information that must be contained in interrogatories.

(3)  For purposes of an investigation under this section, the director or a person appointed to conduct the investigation may inquire into and examine the business and affairs of the person in respect of whom the investigation is being conducted, and may,

(a) on production of his or her appointment, enter at any reasonable time the business premises of the person and examine any book, paper, document and thing relevant to contraventions of this Act, make copies of them, and, subject to subsection (9), retain anything that may be required for evidence, and

(b) inquire into negotiations, transactions, loans, borrowings made by, or on behalf of, or in relation to, the person, and into property, assets or things owned, acquired or alienated in whole or in part by that person or by any person acting on that person's behalf, that are relevant to the subject matter of the investigation.

(4)  For the purpose of the inquiry under subsection (3), the person conducting the investigation has the power, authority and privileges of a commissioner under sections 12, 15 and 16 of the Inquiry Act.

(5)  A person must not

(a) obstruct or impede the director or a person appointed to investigate under this section, or

(b) withhold, conceal or destroy any book, paper, document or thing relevant to the subject matter of the investigation.

(6)  If a justice is satisfied, on an application made without notice to anyone by the director or a person conducting an investigation under this section, that

(a) the investigation has been authorized and the director or the person is authorized or appointed to conduct it, and

(b) there is reasonable ground for believing there is, in a building, dwelling house, receptacle or place, any book, paper, document or thing relating to the person whose affairs are being investigated and to the subject matter of the investigation,

the justice may, whether or not an inspection has been made or attempted under subsection (3) (a), make an order authorizing a person conducting the investigation, together with any peace officers the person calls on to assist him or her, to enter, if necessary by force, and search the building, dwelling house, receptacle or place described in the order for the book, paper, document or thing, and to examine them.

(7)  Every entry and search under subsection (6) is to be made between 8 a.m. and 8 p.m., unless a justice otherwise orders.

(8)  On giving or leaving a general receipt for it, a person making an investigation under this section may remove any book, paper, document or thing examined under subsection (3) (a) or (6) for the purpose of examining or making copies or tests of it.

(9)  A book, paper, document or thing retained under subsection (8) must be promptly returned to the person whose affairs are being investigated, unless required for evidence in a proceeding under this Act or the regulations, in which case the director must, on request and without charge, provide that person with copies of the book, paper or document.

(10)  A copy made as provided in subsection (8) and certified to be a true copy by the person conducting the investigation is admissible in evidence in any proceeding as proof, in the absence of evidence to the contrary, of the original book, paper or document and of its contents, without proof of that person's signature or appointment.

(11)  The minister or director may appoint an expert to examine or test a book, paper, document or thing removed under subsection (8).

 Report to minister

11  If, on the report of an investigation under section 10 (1), it appears to the director that a person may have contravened this Act or the regulations, the director must

(a) send a complete report of the investigation, including the report made to the director, to the minister, and

(b) enforce this Act and the regulations and take whatever steps or proceedings are required or permitted by this Act or the regulations to do so.

 Investigation by order of minister

12  (1)  The minister may, by order, appoint one or more persons to inquire into any matter to which this Act applies as may be specified in the order.

(2)  A person appointed under subsection (1) must report the result of the inquiry to the minister.

(3)  For the purposes of the inquiry, the person appointed under subsection (1) has all the power, authority and privileges of a commissioner under sections 12, 15 and 16 of the Inquiry Act.

 Repealed

13  [Repealed 1998-23-20.]

 Order to refrain from dealing with assets

14  (1)  If an investigation of a person has been ordered under section 10 and the director has reason to believe it advisable for the protection of consumers dealing with that person, the director may, in writing or by telegram, do one or more of the following:

(a) direct a person who the director believes has or may have in the future on deposit, under the person's control or for safekeeping any asset, trust fund or other property of

(i)  a person named in an order under section 10, or

(ii)  a client, customer or debtor of the person named in the order,

to hold any asset, trust fund or other property in trust for an interim receiver, custodian, trustee, receiver or liquidator appointed;

(b) direct a person who the director believes is indebted to a person named in an order under section 10 to hold any asset, trust fund or other property that may be payable or transferable in satisfaction of the debt in trust for an interim receiver, custodian, trustee, receiver or liquidator appointed;

(c) direct a person named in an order under section 10 to refrain from withdrawing any asset, trust fund or other property from a person having any of them on deposit, under control or for safekeeping and to refrain from otherwise dealing with any particular asset, trust fund or other property that the person has or may in the future have under his or her control.

(2)  A direction given under this section remains in force until the director revokes in writing the direction or consents in writing to the release of any particular asset, trust fund or other property.

(3)  Subsection (1) does not apply if the person to be investigated under section 10 files with the director in the form, terms and amount the director determines and in the name of, for the benefit of and deposited with the director any of the following:

(a) a personal bond, together with collateral security;

(b) a bond of a guarantee company approved under this Act or the regulations;

(c) a bond of a guarantor, other than a guarantee company, together with collateral security.

(4)  A person who receives a direction given by the director under subsection (1), may pay or deliver the assets, trust funds or other property into court if

(a) the person is in doubt as to the application of the direction to any assets, trust funds or other property on deposit with, or under the control of the person, or

(b) a person not named in the direction claims a right, title or interest in the assets, trust funds or other property.

(5)  If an investigation of a person has been ordered under section 10, the director may make and file in the office of any land title district in which the land is located a certificate that proceedings are being or are about to be taken that may affect land belonging to the person referred to in the notice.

(6)  A certificate filed under subsection (5) must be registered against the land described in the notice, and the certificate, when registered, has the same effect as the registration of a certificate of pending litigation.

(7)  The director may, in a writing filed in the proper office of a land title district, revoke or amend the certificate.

(8)  At any time, any of the following persons may apply to the court to cancel all or part of a direction or registration, or to vary the direction or registration as the court considers just:

(a) a person named in an order under section 10 and in respect of whom a direction under this section has been given by the director;

(b) a person who has paid or delivered an asset, trust fund or other property into court under subsection (4);

(c) a person who has an interest in land in respect of which a notice has been registered under subsection (6).

(9)  The court must dispose of the application under subsection (8).

(10)  The court may cancel all or part of the direction or registration or vary the direction or registration as the court considers just if it finds that

(a) all or part of a direction or registration under this section is not required to protect the consumers who are dealing with the applicant or other persons interested in the land, or

(b) the interests of other persons are unduly prejudiced by it.

 Receivers and trustees

15  (1)  If an investigation of a person has been ordered under section 10, the director may apply to the court for the appointment of a receiver, receiver manager or trustee of the property of that person.

(2)  On application under subsection (1), the court may appoint a receiver, receiver manager or trustee of the property of the person if it is satisfied the appointment is in the best interest of any of the following:

(a) that person's creditors;

(b) persons whose property is in the possession of or under the control of that person;

(c) consumers.

(3)  A receiver, receiver manager or trustee appointed under this section is the receiver, receiver manager or trustee of all the property belonging to, held by or on behalf of or in trust for the person named in the investigation order, and the receiver, receiver manager or trustee has authority, if directed by the court, to wind up or manage the business and affairs of the person named and all necessary or incidental powers.

(4)  An application under this section may be made either without notice to anyone or on notice, but if the application is made without notice to anyone, the receiver, receiver manager or trustee

(a) is to be appointed for a period not longer than 8 days, and

(b) is not to be authorized to wind up the business or affairs of the person named in the investigation order.

(5)  An order under this section may be enforced in the same manner as any order or judgment of the court and may be varied or discharged on application made by notice.

 Limited liability

16  (1)  The minister, the director, their agents, officers, employees, representatives and persons acting on their behalf are not liable in their personal or official capacities for any loss or damage suffered by a person because of anything done or omitted to be done in good faith in the exercise or purported exercise of powers given by this Act.

(2)  Despite any other law, subsection (1) does not relieve the government from any liability it may have at law for loss or damage suffered by a person in respect of the acts of the persons referred to in subsection (1).

 Supplier's undertaking or assurance

17  (1)  If the director has reason to believe that a supplier has engaged in, or is engaging in, a deceptive or unconscionable act or practice in connection with a consumer transaction, the director,

(a) instead of ordering an investigation of the supplier under this Act or taking proceedings against the supplier under this Act, and

(b) if the director is satisfied that the supplier has ceased engaging in those acts or practices,

may accept from the supplier a written undertaking or assurance in a form and containing the terms and conditions the director determines.

(2)  Without limiting subsection (1), the undertaking or assurance may include any or all of the following terms and conditions:

(a) an undertaking to comply with this Act and the regulations;

(b) an undertaking to refrain from engaging in those acts or practices;

(c) an undertaking to reimburse to the consumers or class of consumers designated in the undertaking any money, property or other thing received from them in connection with a consumer transaction, including money necessarily spent in making and pursuing a complaint;

(d) an undertaking that consumer transactions involving the supplier and the consumers or class of consumers designated in the undertaking will be carried out by the supplier in accordance with terms and conditions specified in the undertaking;

(e) an undertaking to provide a bond in accordance with the Bonding Act;

(f) an undertaking to reimburse to the director the costs of any investigation, as certified by the minister;

(g) requirements for the form, content and maintenance of trust accounts, records, contracts, advertisements or other documents or papers respecting consumer transactions engaged in by the supplier.

(3)  The director may terminate an investigation or proceeding on the acceptance of a written undertaking or assurance from a supplier under subsection (1) if

(a) an investigation of the supplier has been ordered under section 10, or

(b) enforcement proceedings have been commenced by the director under section 18.

 Director's orders to suppliers

17.1  (1)  If the director believes on reasonable and probable grounds that a supplier has contravened, is contravening or is about to contravene this Act or the regulations, the director may order the supplier to comply with the Act and the regulations.

(2)  [Repealed 2003-51-51.]

(3)  A supplier who prints, distributes, broadcasts, telecasts or otherwise publishes an advertisement for the purpose of promoting a consumer transaction that the supplier knows or should have known is the subject of an order of the director not to advertise, or not to advertise in a specified manner, commits an offence.

(4)  If the director makes an order under subsection (1), the director must

(a) serve a copy of the order on the supplier named in the order, and

(b) include with the order written reasons for the order.

(5)  [Repealed 2003-51-51.]

(6)  An order under this section remains in effect until the director

(a) notifies the supplier that the order no longer has effect, or

(b) accepts from the supplier a written undertaking or assurance in accordance with section 17.

(7) and (8)  [Repealed 2003-51-51.]

 Actions and proceedings

18  (1)  In an action brought by the director, or any other person whether or not that person has a special, or any, interest under this Act or the regulations, or is affected by a consumer transaction, the court may grant either or both of the following:

(a) a declaration that an act or practice engaged in or about to be engaged in by a supplier in respect of a consumer transaction is a deceptive or unconscionable act or practice;

(b) an interim or permanent injunction restraining a supplier from engaging or attempting to engage in a deceptive or unconscionable act or practice in respect of a consumer transaction.

(2)  If the court grants relief under subsection (1) it may make a further order requiring the supplier to advertise to the public in the media in a manner that will assure prompt and reasonable communication to consumers, and on terms or conditions the court considers reasonable and just, particulars of any judgment, declaration, order or injunction granted against the supplier under subsection (1) (a) or (b) or subsection (4).

(3)  In an action under subsection (1), any person, including the director, may sue on the person's own behalf and, at the person's option, on behalf of consumers generally, or a designated class of consumers.

(4)  In an action for a permanent injunction under subsection (1) (b), the court may restore to any person who has an interest in it any money or property that may have been acquired because of a deceptive or unconscionable act or practice by the supplier.

(5)  In an action brought by the director under subsection (1) (a) or (b), the court may award to the director costs, or a reasonable proportion of them, of the investigation of a supplier conducted under this Act.

(6)  The director may apply, without notice to anyone, for an interim injunction under subsection (1) (b), and, if the court is satisfied that there are reasonable and probable grounds for believing there is an immediate threat to the interests of persons dealing with the supplier because of an alleged deceptive or unconscionable act or practice in respect of a consumer transaction, the court must grant an interim injunction on the terms and conditions it considers just.

(7)  In an action brought under this section, or in an appeal from it, the plaintiff is not required to provide security for costs.

 Rules for interim injunctions

19  In any application under section 18 for an interim injunction, the following rules apply:

(a) the court must give greater weight, importance and the balance of convenience to the protection of consumers than to the carrying on of the business of a supplier;

(b) the director or any other person applying under that section is not required to post a bond or give an undertaking as to damages;

(c) the applicant need not establish that irreparable harm will be done to the applicant or all other consumers, or any designated class of consumers, if the interim injunction is not granted.

 Injunctions and orders not stayed on appeal

20  Despite any other Act, an appeal to the Court of Appeal does not stay an interim or permanent order or injunction made under section 18 (1) (b), or any other order made under this Act.

 Notice to director

21  (1)  In an action under section 18 commenced by a person other than the director, that person must serve the director with a copy of the writ of summons.

(2)  On being served under subsection (1), the director may, on application to the court, intervene in the action as a party, on the terms and conditions the court considers just.

(3)  The court may proceed with the action even though the director has not been served under subsection (1).

 Damages recoverable by consumer

22  (1)  If a consumer has entered a consumer transaction involving a deceptive or unconscionable act or practice by a supplier, a court may, in an action in respect of the transaction, do one or more of the following:

(a) award the consumer damages in the amount of any loss or damage suffered by the consumer because of the deceptive or unconscionable act or practice, including punitive or exemplary damages;

(b) make any order, including rescission of the transaction or restitution of any money, property or other consideration given or provided by the consumer;

(c) subject to section 4 (4), impose other terms the court considers just.

(2)  Subject to the monetary jurisdiction specified in the Small Claims Act, the Provincial Court of British Columbia has concurrent jurisdiction for the purposes of this section.

(3)  A consumer must not commence an action claiming relief under subsection (1) if the consumer or a person on the consumer's behalf has made application to the court in respect of the same defendant and transaction under section 26.

 Conclusive proof

23  If an act or practice of a supplier has been declared or permanently enjoined by a court as being a deceptive or unconscionable act or practice under section 18, the order is, in any other civil proceeding involving the supplier except an appeal from the order, conclusive proof that the act or practice in question is deceptive or unconscionable.

 Substitute action of director

24  (1)  The director may, on behalf of a consumer, commence or assume the conduct of proceedings, defend any proceedings brought against the consumer, with a view to enforcing or protecting the rights of the consumer respecting a contravention or suspected contravention of those rights or of any enactment or law relating to the protection or interests of consumers if the director is satisfied that

(a) the consumer has

(i)  a cause of action,

(ii)  a defence to an action,

(iii)  grounds for setting aside a default judgment, or

(iv)  grounds for an appeal or to contest an appeal,

and

(b) it is in the public interest.

(2)  The director must not commence, assume the conduct of or defend any proceedings under subsection (1) without first obtaining

(a) an irrevocable written consent of the consumer, and

(b) the written consent of the minister.

(3)  The following rules apply to proceedings referred to in subsection (1):

(a) the director, on behalf of the consumer, has in all respects the same rights in and control over the proceedings, including the same right to settle an action or part of an action, as the consumer would have had in the conduct of those proceedings;

(b) the director may, without consulting or seeking the consent of the consumer, conduct the proceedings in the manner the director considers appropriate and proper;

(c) any money, excluding costs, recovered by the director belongs and must be paid to the consumer without deduction, and any amount, excluding costs, awarded against the consumer must be paid by and recoverable from the consumer;

(d) despite paragraph (c), in every case, any costs of the proceedings awarded by the court must be borne by, or paid to and retained by, the director.

(4)  If

(a) a party to proceedings to which this section applies files a counterclaim, or

(b) the consumer on whose behalf the proceedings are being defended is entitled to file a counterclaim,

and that counterclaim is not related to

(c) the cause of action, and

(d) the interests of the consumer as a consumer,

the court having jurisdiction in the proceedings must, on the application of the director, order

(e) that the counterclaim be heard separately, and

(f) that the consumer be made a party to the counterclaim in his or her own right.

(5)  For the purposes of subsection (4), the court may make other orders or give directions that it considers just.

 Offences and penalties

25  (1)  A person commits an offence if the person does any of the following:

(a) contravenes this Act or the regulations, or an order of the director or minister under this Act;

(b) refuses or fails to provide information as required under this Act, or provides false information to a person acting under this Act;

(c) fails to comply with an order of the court;

(d) fails to comply with a written undertaking or assurance made under this Act, unless the undertaking or assurance has been rescinded by written consent of the director or minister, or by the court;

(e) intentionally makes a false statement to or misleads or attempts to mislead the director;

(f) without lawful justification or excuse, intentionally obstructs, hinders or resists an investigation by the director;

(g) without lawful justification or excuse, intentionally refuses or intentionally fails to comply with a lawful requirement of the director.

(2)  A person who commits an offence under subsection (1) is liable on conviction

(a) to a fine of not more than $10 000 for a first offence, and of at least $500 and not more than $10 000 for a second or subsequent offence,

(b) to imprisonment for not more than one year, or

(c) to both a fine under paragraph (a) and imprisonment under paragraph (b).

(3)  A supplier who does, engages in or participates in a deceptive or unconscionable act or practice in respect of a consumer transaction contravenes this Act and commits an offence.

(4)  A supplier who commits an offence under subsection (3) is liable on conviction

(a) to a fine of not more than $10 000 for a first offence, and of at least $500 and not more than $10 000 for a second or subsequent offence,

(b) to imprisonment for not more than one year, or

(c) to both a fine under paragraph (a) and imprisonment under paragraph (b).

(5)  Despite subsections (2) and (4), if a corporation is convicted of an offence under subsection (1) or (3), the corporation is liable on conviction to a fine of not more than $100 000 for a first offence, and of at least $1 000 and not more than $100 000 for a second or subsequent offence.

(6)  If a corporation commits an offence under subsection (1) or (3), every director, officer or other person who authorized, permitted or acquiesced in the offence commits the offence personally.

(7)  A fine imposed under this section may be increased by the court by an amount of up to 3 times the court's estimation of the amount of the monetary benefit acquired or accrued as a result of the commission of the offence.

(8)  A fine under subsection (7)

(a) applies despite any provision that provides for a maximum fine, and

(b) is in addition to any other fine under this section.

(9)  For the purposes of subsection (1) (f) and (g), each day an offence continues constitutes a separate offence.

 Compensation to consumer

26  (1)  In addition to a sentence imposed under section 25, a court that convicts a defendant of an offence under this Act may at the time sentence is imposed order the defendant to pay to the aggrieved consumer as compensation for pecuniary loss suffered by the aggrieved consumer as a result of the commission of the offence an amount not greater than the monetary jurisdiction specified in the Small Claims Act.

(2)  An application for an order under subsection (1) may be made by an aggrieved consumer or by the Crown prosecutor on the request and on behalf of the aggrieved consumer unless the aggrieved consumer

(a) has commenced a civil action against the defendant in respect of the same transaction, and

(b) is claiming relief under section 22.

(3)  If the defendant does not comply with an order made under subsection (1) within 30 days or within the time ordered by the court, whichever is later, the aggrieved consumer may, by filing the order with the registrar of the Provincial Court hearing matters under the Small Claims Act in or near the place where the conviction was entered, enter judgment in that court.

(4)  A judgment entered in the Provincial Court under subsection (3) is enforceable against the defendant in the same manner as if it were a judgment rendered in that court in civil proceedings.

 Defences in proceedings under section 25

27  (1)  In proceedings for an offence under section 25 it is, subject to subsection (2), a defence for the person charged to prove that

(a) the commission of the offence was due to a mistake or to reliance on information supplied to the person, or to the act or default of another person, or to an accident or some other cause beyond the person's control, and

(b) that the person took all reasonable precautions and exercised all due diligence to avoid the commission of such an offence by himself or herself or any person under the person's control.

(2)  If the defence provided by subsection (1) involves the allegation that the commission of the offence was due to

(a) the act or default of another person, or

(b) reliance on information supplied by another person,

the person charged may not, without leave of the court, rely on that defence unless the person served on the prosecutor, within a period ending 7 clear days before the trial, a notice in writing, giving the information then in the person's possession identifying or assisting in the identification of that other person.

 Limitation period

28  A prosecution under this Act must not be commenced more than 2 years after the date on which the subject matter of the proceedings arose.

 Admissibility of parole evidence

29  In a proceeding in respect of a consumer transaction, a rule of law respecting parole or extrinsic evidence, or a term or provision in a consumer transaction, does not operate to exclude or limit the admissibility of evidence relating to the understanding of the parties as to the consumer transaction or a particular term or provision of it.

 Certificate as proof of ministerial consent or appointment

30  If it is necessary in proceedings under this Act to prove that the minister has given a consent under this Act, or that a person has been appointed by the minister as director, or has been designated under this Act, a certificate purporting to be signed by the minister is proof, in the absence of evidence to the contrary, of the fact so stated, without proof of the signature or the authority of the minister.

 Other rights of consumers not affected

31  This Act applies despite an agreement to the contrary, and does not restrict, limit or derogate from the rights of a consumer under any other law.

 Suspension or revocation of registration or licence

32  If a supplier who is registered or licensed under an Act to carry on a profession, occupation, business, trade or any other activity, engages or participates in a deceptive or unconscionable act or practice in respect of a consumer transaction in carrying on that profession, occupation, business, trade or other activity, the deceptive or unconscionable act or practice may be a ground for suspension, revocation or cancellation of the registration or licence.

 Power to make regulations

33  (1)  The Lieutenant Governor in Council may make regulations referred to in section 41 of the Interpretation Act.

(2)  Without limiting subsection (1), the Lieutenant Governor in Council may make regulations as follows:

(a) exempting any class of supplier or type of consumer transaction from this Act or the regulations or any provision of them;

(b) restricting the application of this Act to any class of supplier or type of consumer transaction;

(c) requiring suppliers to make returns and provide information to the director;

(d) requiring information required to be provided, or contained in a form or return, to be verified by affidavit;

(e) prescribing the method of service of documents on the director;

(f) defining, for the purpose of this Act and the regulations, words or expressions not defined in this Act;

(g) defining, for the purpose of this Act, the meaning of words, expressions or representations used in the promotion or advertisement of the subject of a consumer transaction;

(h) prescribing, in respect of any class of supplier, the form and content of any form of contract, notice or other document to be used in consumer transactions;

(i) prescribing, for the purpose of section 3, acts or practices that are deceptive;

(j) prescribing, for the purpose of section 4, the circumstances to be considered by the court in determining whether an act or practice is unconscionable.

(3)  A regulation under this section is deemed to be part of this Act.

 Reports

34  (1)  The director must prepare annually, or more often as the minister requires, a report about the administration of this Act, including particulars for the preceding year of the following:

(a) the investigations and enforcement procedures and policies;

(b) the number and disposition of enforcement proceedings;

(c) any other activities and programs.

(2)  The director must file the report with the minister.

(3)  The minister must table the annual report within 15 days after the beginning of the first session of the Legislature in the following year.