1998/99 Legislative Session: 3rd Session, 36th Parliament
FIRST READING


The following electronic version is for informational purposes only.
The printed version remains the official version.


HONOURABLE UJJAL DOSANJH
ATTORNEY GENERAL AND MINISTER RESPONSIBLE FOR
MULTICULTURALISM, HUMAN RIGHTS AND IMMIGRATION

BILL 19 -- 1998

ATTORNEY GENERAL STATUTES
AMENDMENT ACT, 1998

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:

 
Consumer Protection Act

1 Section 1 of the Consumer Protection Act, R.S.B.C. 1996, c. 69, is amended

(a) by repealing the definition of "contract for future services" and substituting the following:

"contract for future services" means any of the following:

(a) an executory contract that includes a provision for services of a prescribed type or class to be rendered in the future on a continuing basis;

(b) a contract for dance lessons under which the consideration, excluding the cost of borrowing, is greater than an amount set by regulation;

(c) a contract for health studio services under which the consideration, excluding the cost of borrowing, is greater than an amount set by regulation;

(d) a contract for travel club services under which the consideration, excluding the cost of borrowing, is greater than an amount set by regulation; , and

(b) by adding the following definition:

"contract for travel club services" means an executory contract by which the buyer acquires the right, by membership in a travel club, vacation club, or by other means, to discounts or other benefits on the purchase of transportation, accommodation or other services related to travel; .

2 Section 77 (3) is repealed and the following substituted:

(3) A regulation under subsection (1) (l) ceases to have effect after the last day of the next session of the Legislative Assembly after the regulation is made.

3 In section 1 of the Supplement to the Act, all the provisions enacted by that section, except the part enacting section 6.1 of the Act, are repealed.

4 Sections 2 and 3 of the Supplement to the Act are repealed.

 
Residential Tenancy Act

5 Section 16 of the Residential Tenancy Act, R.S.B.C. 1996, c. 406, is amended by adding the following subsection:

(3) If an arbitrator, on application, is satisfied that a landlord who exercised a right of entry under any of paragraphs (a) to (f) of subsection (1) did so for an improper purpose, at an unreasonable time or in an unreasonable manner, the arbitrator may do one or more of the following:

(a) suspend any of those rights of entry of the landlord;

(b) order that a right of entry of the landlord be exercised only on conditions ordered by the arbitrator.

6 Section 18 is amended

(a) by repealing subsection (1) and substituting the following:

(1) A landlord and tenant are deemed to have agreed to submit to an arbitrator any of the following applications:

(a) an application to arbitrate any matter under section 11, 12, 13 (4), 14 (1) or (4), 15, 16, 17, 22, 29, 35 (3), 37, 39, 42 (3) or (4), 44, 46, 47, 72, 82 or 84;

(b) an application to arbitrate any matter under section 30 (1), (2), (4) or (5);

(c) an application to dispute the amount of a rent increase between a tenant of a manufactured home pad and the landlord if

(i) the manufactured home pad is rented in circumstances other than where the tenant is renting a manufactured home and the pad under a single tenancy agreement, and

(ii) the tenant applies for arbitration within 30 days after

(A) the tenant receives a notice under section 69 (6) that the chair of the dispute resolution committee has refused to appoint a dispute resolution subcommittee,

(B) the tenant receives a notice under section 71 (3) ending mediation, or

(C) the tenant receives a notice under section 71 (6) that a recommendation has been rejected. , and

(b) by repealing subsection (2) (a) and substituting the following:

(a) must determine the appropriate rent increase in accordance with the regulations, .

7 Section 54 is amended by adding the following subsection:

(5) An arbitrator may do one or more of the following:

(a) order a landlord or tenant to comply with the Act or a tenancy agreement;

(b) make an order, with or without conditions;

(c) make an interim order;

(d) order substituted service of a notice, order, process or document;

(e) if consent to assign or sublet the tenant's interest in a tenancy agreement is arbitrarily or unreasonably withheld by a landlord contrary to section 17 (2), order that a tenancy agreement is assigned or sublet;

(f) set aside a notice to end a tenancy agreement, with or without conditions, if the arbitrator is satisfied, having regard to all the circumstances, that ending the tenancy agreement would create unreasonable hardship in relation to the conduct, breach or circumstances that led to the issue of the notice;

(g) order that the tenancy ends on a date other than the date specified in the notice to end the tenancy.

8 Section 61 (1) (a) is amended by striking out "sections 37, 46 and 47," and substituting "sections 37, 46, 47 and 54 (5) (e)," .

9 Section 66 (7) is repealed.

10 Section 69 is amended by adding the following subsection:

(3.1) Despite subsection (3), the Lieutenant Governor in Council may make regulations respecting the circumstances and conditions under which the chair of the dispute resolution committee may refuse to appoint a dispute resolution subcommittee.

11 Section 73 is repealed and the following substituted:

Dispute involving rent increase

73 (1) A dispute over the amount of a rent increase may be mediated under section 69 only if the tenant applies for mediation within 60 days of receiving the notice of rent increase under section 24.

(2) If the landlord and tenant are unable to agree to the amount of the rent increase through mediation, the dispute resolution subcommittee must determine the appropriate rent increase in accordance with the regulations.

12 Section 86 is amended by adding the following subsection:

(3) Section 88 (5) applies to service of a notice, document, order or process under this section.

13 Section 87 is amended by adding the following subsection:

(3) Section 88 (5) applies to service of a notice, document, order or process under this section.

14 Section 90 (2) is amended

(a) by repealing paragraph (n) and substituting the following:

(n) prescribing standard park rules to govern a manufactured home park or class of manufactured home parks, the circumstances under which those rules apply and the process for changing the rules in force in a park; , and

(b) by adding the following paragraphs:

(p) prescribing matters related to the assignment and sublet of a manufactured home park tenancy agreement, including but not limited to the criteria and procedures for withholding or granting consent to an assignment or sublet;

(q) defining a word or phrase used but not defined in the Act;

(r) governing applications for and the determination of the appropriate amounts of rent increases respecting manufactured homes and, for that purpose, providing that particular provisions of this Act apply to disputes respecting those rent increases;

(s) governing kinds and levels of services to be provided by the landlord in manufactured home parks.

15 The following section is added:

Limitation period: offences

91.1 A prosecution of an offence under this Act must not be commenced more than 2 years after the facts on which the proceeding is based first come to the knowledge of the registrar.

 
Trade Practice Act

16 Section 1 of the Trade Practice Act, R.S.B.C. 1996, c. 457, is amended

(a) in the definition of "consumer" by adding "whether in British Columbia or not," after "an individual," ,

(b) by repealing the definition of "consumer transaction" and substituting the following:

"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; ,

(c) by adding the following definition:

"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; ,

(d) in paragraph (c) of the definition of "personal property" by striking out "other than" and substituting "including",

(e) in the definition of "services" by striking out "personal", and

(f) in the definition of "supplier" by adding "whether in British Columbia or not," after "a person,".

17 Section 8 is repealed.

18 Section 10 is amended by adding the following:

(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 Company 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.

19 Section 13 is repealed.

20 The following section is added:

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) A person affected by an order of the director under this section may appeal the director's decision to issue the order to the Commercial Appeals Commission.

(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) An order under this section must inform the supplier named in the order that the supplier is entitled to appeal the director's decision to issue the order to the Commercial Appeals Commission.

(6) If a supplier on whom a copy of an order has been served under subsection (4) does not file an appeal to the Commercial Appeals Commission, the order has effect until

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

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

(7) If, in the opinion of the director, it is necessary for the protection of the public to make an order to take effect immediately and for the order to continue in effect despite a pending appeal to the commission, the director may make an order under subsection (1) to take effect immediately.

(8) If the director makes an order under subsection (7), then despite section 12 of the Commercial Appeals Commission Act, the decision of the director set out in the order is not stayed pending an appeal to the commission.

21 Section 18 (3) is amended by striking out ", in British Columbia".

22 Section 19 (c) is amended by striking out "in British Columbia,".

23 Section 25 is amended

(a) in subsection (1) by adding the following paragraphs:

(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. ,

(b) by repealing subsections (2), (4) and (5) and substituting the following:

(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).

(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. , and

(c) by adding the following subsections:

(7) The court that convicts a person of an offence under this section may increase a fine imposed on the person by an amount up to 3 times the court's estimation of the amount of the monetary benefit acquired by or that accrued to the person 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.

24 Section 26 (1) is amended by striking out "under section 25 (2)," and substituting "under section 25,".

Transition for notices referred to in new section 18 (1) (c) (ii)
of the Residential Tenancy Act

25 If on or after October 1, 1992, but before section 18 (1) (c) (ii) of the Residential Tenancy Act, as enacted by section 6 (a) of this Act, comes into force, a tenant received a notice referred to in section 18 (1) (c) (ii) of the Residential Tenancy Act, the landlord and tenant are deemed to have agreed to submit a dispute to an arbitrator if the tenant applies for arbitration within 90 days after the date section 6 (a) of this Act comes into force.

Transition for notices referred to in new section 73 (1) of the Residential Tenancy Act

26 If a rent increase notice under section 24 of the Residential Tenancy Act is given on or after October 1, 1992, but before section 73 (1) of the Residential Tenancy Act, as enacted by section 11 of this Act, comes into force, a dispute over the amount of the rent increase may be mediated if the tenant applies for mediation within 90 days after the date section 11 of this Act comes into force.

Commencement

27 (1) Sections 1 to 26 come into force by regulation of the Lieutenant Governor in Council.

(2) When brought into force by regulation, section 1 is deemed to have come into force on April 17, 1997 and is retroactive to the extent necessary to give it effect on and after that date.

 
Explanatory Notes

 
Consumer Protection Act

SECTION 1: [Consumer Protection Act, amends section 1] re-enacts the definition of "contract for future services" and adds a definition of "contract for travel club services".

SECTION 2: [Consumer Protection Act, repeals and replaces section 77 (3)] re-enacts the subsection to reflect the change in the legislative procedure to convoke a session to start and then prorogue that session just before the start of the next ensuing session.

SECTIONS 3 and 4: [Supplement to the Consumer Protection Act, amends section 1 and repeals sections 2 and 3] repeal obsolete unproclaimed provisions.

 
Residential Tenancy Act

SECTION 5: [Residential Tenancy Act, adds section 16 (3)] gives an arbitrator powers to set appropriate limits on a landlord's rights of entry if the landlord has exercised those rights improperly or unreasonably.

SECTION 6: [Residential Tenancy Act, amends section 18]

SECTION 7: [Residential Tenancy Act, adds section 54 (5)] adds additional powers that enable an arbitrator to resolve disputes more effectively.

SECTION 8: [Residential Tenancy Act, amends section 61 (1) (a)] is consequential to the enactment of new section 54 (5) (e).

SECTION 9: [Residential Tenancy Act, repeals section 66 (7)]

SECTION 10: [Residential Tenancy Act, adds section 69 (3.1)] provides a power to make regulations respecting the circumstances and conditions under which the chair of the dispute resolution committee may refuse to appoint a dispute resolution subcommittee.

SECTION 11: [Residential Tenancy Act, re-enacts section 73]

SECTION 12: [Residential Tenancy Act, adds section 86 (3)] adds a power to order substituted service or to deem service to have been adequate for the purposes of the section.

SECTION 13: [Residential Tenancy Act, adds section 87 (3)] adds a power to order substituted service or to deem service to have been adequate for the purposes of the section.

SECTION 14: [Residential Tenancy Act, amends section 90 (2)] adds regulation making powers

SECTION 15: [Residential Tenancy Act, enacts section 91.1] provides a limitation period for the commencement of prosecutions of offences under the Act.

 
Trade Practice Act

SECTION 16: [Trade Practice Act, amends section 1] amends definitions.

SECTION 17: [Trade Practice Act, repeals section 8] leaves matters formerly governed by the section to be governed by the Freedom of Information and Protection of Privacy Act.

SECTION 18: [Trade Practice Act, adds section 10 (2.1) to (2.8)] adds powers to assist the director in conducting investigations and hearings, including the power to require persons to answer interrogatories.

SECTION 19: [Trade Practice Act, repeals section 13] leaves matters formerly governed by the section to be governed by the Freedom of Information and Protection of Privacy Act.

SECTION 20: [Trade Practice Act, enacts section 17.1] provides the director with specific powers to deal with contraventions by suppliers.

SECTION 21: [Trade Practice Act, amends section 18 (3)] allows for representative actions to protect the interests of all consumers, not only those in British Columbia.

SECTION 22: [Trade Practice Act, amends section 19 (c)] allows for injunctive relief to protect the interests of all consumers, not only those in British Columbia.

SECTION 23: [Trade Practice Act, amends section 25]

SECTION 24: [Trade Practice Act, amends section 26 (1)] amends the subsection to refer to sentences imposed under section 25 rather than only those imposed under section 25 (2).

SECTION 25: [Transitional for section 18 (1) (c) (ii) of the Residential Tenancy Act] instead of the usual 30 day filing period following receipt of a notice, provides a 90 day transitional period for tenants to file for arbitration of disputes if a notice referred to in section 18 (1) (c) (ii) of the Residential Tenancy Act, as enacted by section 6 (a) of this Act, was given by the landlord before the coming into force of section 6 (a).

SECTION 26: [Transitional for section 73 (1) of the Residential Tenancy Act] instead of the usual 60 day period following receipt of a notice, provides a 90 day transitional period for tenants to file for mediation of disputes if a notice referred to in section 73 (1) of the Residential Tenancy Act, as enacted by section 11 of this Act, was given by the landlord before the coming into force of section 11.


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