Law Commission of Ontario Consultation Paper on Consumer Protection in the Digital Marketplace

The Law Commission of Ontario (LCO) recently published a consultation paper on Consumer Protection in the Digital Marketplace.

The LCO is interested in looking at updates to Ontario’s Consumer Protection Act to better protect consumers when it comes to digital products and services:

"Hardly a day goes by that consumers in Ontario are not asked to click, tap, scan, or otherwise confirm 'I ACCEPT' when presented with a contract for an online product or service."

"Yet consumers, businesses, and government alike express increasing concern that this framework no longer meets contemporary needs.

• For consumers, these contracts are nearly impossible to read, frequently change without notice, have a huge cumulative footprint, and may trigger big consequences from comparatively minor transactions.
• For businesses, there is a risk of regulatory compliance, a risk to reputation, and uncertainty over terms and practices that may be deemed deceptive or unfair.
• For governments, there is an interest in maintaining consumer confidence in a robust digital marketplace, ensuring a fair playing field for businesses, and fostering laws which are in tune with the times."

(...)

"Broadly speaking, the Consultation Paper asks two sets of questions."

"First, the LCO considers if or how Ontario’s Consumer Protection Act should be updated to better protect consumers considering the new, complex, and expansive range of consumer risks in the digital economy. As such, the Consultation paper addresses what might be considered classic or traditional consumer protection issues and contracts principles, including:

• Notice and disclosure
• Deception and unconscionability (unfair practices)
• Unilateral changes to contracts
• Contracting with youth and vulnerable groups
• Access to justice, dispute resolution, and systemic oversight."

"Second, the Consultation Paper considers the effect and impact of important new technological and business practices that may be unfamiliar to many consumers. This includes deceptive 'dark pattern' software and contract practices, network effects, platform lock-in, monetization practices, and algorithmic content shaping. These developments challenge many traditional principles of consumer protection law, often with inconsistent and unpredictable results."

Updated GlobaLex Research Guides

The GlobaLex collection at the New York University Law School has updated a number of its research guides on international and comparative law:

• Comparative Civil Procedure: Finding Primary and Secondary Sources: "The comparison of legal systems has for a long time been an essential branch of legal research and jurisprudence. It has become even more important and relevant in our era of globalization, an era in which there is no field of law that can base its knowledge exclusively on national ideas and rules of procedure. Peter Gottwald sees the comparison of legal systems leading 'not only to a better knowledge of foreign law but also corresponding to the internationalization of law and jurisprudence, and the globalization of politics, of trade, commerce and private lifestyle.' (...) The first part of this article lists: general works of comparative civil procedure; basic books about the civil and common-law systems; and encyclopedias and treatises covering several jurisdictions. The remainder of the article is arranged by country. Depending upon the country, the sources listed may be in English or in the vernacular (or both in some cases). Under 'Primary Sources' are listed codes of civil procedure and civil procedure statutes and, for civil law jurisdictions, basic treatises, and commentaries. Under 'Secondary Sources' are listed monographs, treatises, and commentaries (for common law jurisdictions), which may also contain the text of civil procedure code sections and statutes. The section on 'Secondary Sources' also contains collected jurisprudence, as well as a few journals."
• The Council of Europe: "The Council of Europe is the continent’s leading human rights organization. It brings together 46 European states, including all the members of the European Union, representing 700 million citizens. Its mission is to promote democracy and protect human rights and the rule of law in Europe."
• Researching Global Health Law: "This 2023 update will again include a wide array of resources, ranging from primary international law instruments to databases that contain domestic health-related legislation. Also included are suggestions for researching the relationships between global health law and international human rights, trade, and intellectual property. In terms of format, the guide emphasizes electronic sources, but some print monographs are also mentioned. All of the listed resources are available in English, although several are multilingual. The aggregate purpose of the guide is to provide a comprehensive roadmap for researching the highly complex and dynamic field of global health law, which now includes the COVID-19 pandemic within its topical scope."
• Researching Nanotechnology and Selected Legal and Regulatory Issues: "The word ‘nano’ is derived from the Greek word ‘nanos’, meaning ‘dwarf’ or ‘very small man’. In the study of nanoscience and technology, this word is used to indicate a scale of measurement. Nanotechnology, according to the European Commission, is a branch of science and engineering that is devoted to designing, producing, and using structures, devices, and systems by manipulating atoms and molecules at the nanoscale, i.e., having one or more dimensions of the order of 100 nanometres (100 millionths of a millimeter) or less. In layman’s term, it is the study of nanoscale chemicals (...) At the beginning of this century, most of the developed countries started initiatives to exploit nanotechnologies treating these as ‘the wave of the future’. The policymakers and stakeholders involved in dealing with nanoparticles and nanomaterials have frequently endorsed nanotechnologies as important catalysts that promise to play a crucial role in harnessing the potentials of the so-called fourth industrial revolution. The legal and regulatory discussion on nanotechnology mostly rotates around the study of chemical substances, the environment, occupational health and safety, product liability, and consumer protection etc."

LawBytes Podcast on Proposed Federal Bill on Right to Repair

In the most recent LawBytes podcast, University of Ottawa law professor Michael Geist talks with Alissa Centivany and Anthony Rosborough about a private member's bill making its way through the House of Commons that would recognize the right to repair goods and appliances:

"The right to repair would seem like a political no-brainer: a policy designed to extend the life of devices and equipment and the ability to innovate for the benefit of consumers and the environment. Yet somehow copyright law has emerged as a barrier on that right, limiting access to repair guides and restricting the ability for everyone from farmers to video gamers to tinker with their systems. The government has pledged to address the issue and Bill C-244, a private members bill making its way through the House of Commons, would appear to be the way it plans to live up to that promise."

"Alissa Centivany, an assistant professor in the faculty of information and media studies at Western University and the principal investigator of a SSHRC-funded research project on the right to repair and Anthony Rosborough, who completing his doctoral thesis at the European University Institute in Florence and is set to take up a joint appointment in Law and Computer Science at Dalhousie University later this year, have been two of the most outspoken experts on this issue in Canada."

It is possible to follow the progress of the bill on the LEGISinfo website. 

Recent Legislative Summaries from Library of Parliament

The Library of Parliament has recently published a number of legislative summaries if bills currently being debated.

• Legislative Summary of Bill C-7: An Act to amend the Criminal Code (medical assistance in dying)
• Legislative Summary of Bill C-10: An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts (preliminary version)
• Legislative Summary of Bill C-11: An Act to enact the Consumer Privacy Protection Act and the Personal Information and Data Protection Tribunal Act (preliminary version)
• Legislative Summary of Bill C-12: An Act respecting transparency and accountability in Canada's efforts to achieve net-zero greenhouse gas emissions by the year 2050
• Legislative Summary of Bill C-15: An Act respecting the United Nations Declaration on the Rights of Indigenous Peoples (preliminary version)

Recent Developments in Law Reform from Around the World

 I had not heard of the Singapore Academy of Law (SAL) but I recently discovered a publication of theirs on Recent Developments in Law Reform.

There is news about law reform work being done by the SAL in areas like the Impact of Robotics & AI on the Law as well as a number of articles about the work of law reform commissions from other countries on:

• defamation (England, Scotland, Ontario, Australia)
• corporate criminal responsability (Australia)
• leasehold property owenership (UK)
• the right of consumers placing online orders when the retailer goes bankrupt (UK)

Most Recent Issue of LawNow: Rural Law

The most recent issue of LawNow is available online. The magazine is published by the Centre for Public Legal Education Alberta.

The issue features a series of articles that look back at  major legal developments over the past 20 years.

There is also a special report on the state of the law in rural communities.

American Museum of Tort Law (the "Ralph Nader" Museum) Opens in Connecticut

Check out the September 28, 2015 article in The New Yorker on Ralph Nader's Tort Museum.

Last month, the American Museum of Tort Law opened in Winsted, Connecticut.

The museum is the idea of the famous American consumer advocate and lawyer Ralph Nader who comes from Winsted:

"Nader’s consumer-protection advocacy is the lifeblood of the museum. In the center of the museum sits a cherry-red Chevrolet Corvair, the car Nader disgraced in his 1965 book 'Unsafe at Any Speed'."(...)

"In an unfortunate irony for the museum, its building is located directly across the street from the local ambulance service and its fleet of ambulances. But during the opening, a group of E.M.T.s walked across the street with a copy of their training textbook for Mr. Nader to sign. 'Why does a car door not fly open in a crash?' one paragraph begins. 'The answer is the Nader pin (named for Ralph Nader, the consumer advocate who lobbied for the device), a case-hardened pin in an automobile door. In a collision, the cams in the door locks grasp the pin to keep the door from flying open, preventing occupants from being thrown from the vehicle. All cars sold in the United States since 1966 have the Nader pin.' He signed his name next to this paragraph and requested a copy for the museum."

Library of Parliament Legislative Summary of Bill C-49: An Act to amend the Competition Act

The Library of Parliament recently published a legislative summary of Bill C-49: An Act to amend the Competition Act (short title: Price Transparency Act):

"Bill C-49: An Act to amend the Competition Act (short title: Price Transparency Act)1 was introduced and given first reading in the House of Commons on 9 December 2014. Fundamentally, the bill aims to end geographic price discrimination, which, according to the government, is one of the key contributors to the Canada–U.S. price gap for consumer goods."

"The bill gives the Commissioner of Competition the authority to investigate alleged cases of price discrimination between the two countries. The Commissioner’s findings, which are to be publicly reported, must include the apparent reasons for price differences and shed light on any unjustified differences (...)"

"Bill C-49 received a mixed response from stakeholders following its introduction and first reading in the House of Commons. According to media reports, the main criticism of the bill is that it will probably not be effective in reducing the consumer goods price gap between Canada and the United States. The C.D. Howe Institute suggested that the bill might even diminish competition in Canada by discouraging foreign companies from doing business in Canada. "

"However, the Retail Council of Canada expressed support for the bill. It believes that some foreign manufacturers sell their products at a higher price to Canadian retailers than to U.S. retailers, simply because they believe that Canadians are willing to pay more for the same product. The council believes that the bill will identify manufacturers who practise geographical price discrimination and allow Canadians to know which ones are treating them fairly."

It is possible to follow the progress of the Bill in Parliament on the LEGISinfo website.

Law Reform Commission of Saskatchewan Report on Foreclosure Protection

The Law Reform Commission of Saskatchewan has released a report on the Reform of The Land Contracts (Actions) Act that deals with foreclosure:

"Foreclosure involves lengthy legal proceedings taken in the Court of Queen’s Bench and is governed  by several statutes, including The Land Contracts (Actions) Act (the LCAA). The LCAA is consumer protection legislation intended to protect borrowers by requiring lenders to obtain leave of the court before starting foreclosure. The protection is provided as time: time to bring the mortgage up to date, refinance, or sell the property before foreclosure or judicial sale or, if that is not possible, time to find alternative accommodation. The LCAA is 70 year old legislation, having been enacted in 1943. This Final Report considers the steps required by the LCAA for non-farm land mortgages and recommends reforms to better protect borrowers in current conditions."

The report looks at other Canadian jurisdictions, including B.C., Alberta, Ontario, New Brunswick, Nova Scotia, PEI and Newfoundland and Labrador.

Law Library of Congress Report on Restrictions on Genetically Modified Organisms

The Law Library of Congress in Washington, D.C. has published a new comparative report on Restrictions on Genetically Modified Organisms.

The report analyzes legislation on genetically modified organisms (GMOs) and genetically modified (GM) plants and foods in Argentina, Belgium, Brazil, Canada, China, Egypt, England and Wales, France, Germany, Israel, Italy, Japan, Lebanon, Mexico, the Netherlands, New Zealand, Norway, the Russian Federation, South Africa, South Korea, Sweden, and the United States.

There is also a bibliography.

Earlier comparative law reports from the Law Library of Congress have covered topics such as:

• Adjudication of Sexual Offenses in Military Justice Systems
• Bioethics
• Biometric Data Retention for Passport Applicants and Holders
• Campaign Finance
• Children's Rights
• Constitutional Provisions on Women's Equality
• Education of Non-Native Language Speaking Children
• Foreign Aid Regulation
• Guest Worker Programs
• Habeas Corpus Rights
• Online Privacy Law
• Repatriation of Historic Human Remains (return of indigenous remains and cultural items)
• Sex Selection & Abortion

The Law Library of Congress is the world’s largest law library, with a collection of over 2.65 million volumes from all ages of history and virtually every jurisdiction in the world.

Joint English and Scottish Law Commission Report on Consumer Redress for Misleading and Aggressive Practices

The Law Commission in England and the Scottish law Commission have released a joint report on the protection of consumers against misleading practices.

From the summary:

"We recommend new legislation to provide redress to consumers who experience
misleading and aggressive practices in their dealings with traders. Our aim is to
clarify and simplify the current law on misleading practices, and to improve the
law on aggressive practices by filling the gaps in the current law. We recommend targeted reform (...)"

"In particular, we recommend that :

• (1) There must be a contract between the parties or a payment made by the consumer. Thus consumers would not, for example, be entitled to compensation if they visited a shop in response to a misleading advertisement but did not buy anything. Nor would consumers have a separate right to compensation for being misled about their rights.
• (2) The consumer would only have a right against the other party to the contract, usually the retailer or service provider. The legislation would not provide additional rights against others in the supply chain, such as producers or against individual directors.
• (3) The list of banned practices under the Regulations would not give rise to automatic redress; they would only be covered by the new right if they would affect an 'average consumer'.
• (4) The general prohibition against commercial practices which are 'contrary to the requirements of professional diligence' should not give rise to redress. It is too uncertain.
• (5) Land transactions and financial services should not be covered. Instead the existing law should remain."

The report also recommends two tiers of remedies for consumers under a new law:

"Tier 1remedies would be the standard remedies and would apply on a strict liability basis. The amount would be based on the price paid and would not require evidence of loss. This means they could be used in both the civil courts and alongside enforcement action, for example in criminal compensation orders. By contrast, Tier 2 remedies would apply only if the consumer proved additional loss;they would also be subject to the trader’s due diligence defence."

Library of Parliament Legislative Summary of Bill C-36 on Consumer Product Safety

The Library of Parliament recently released a Legislative Summary of Bill C-36: An Act respecting the safety of consumer products:

"Bill C-36, An Act respecting the safety of consumer products (short title: the Canada Consumer Product Safety Act or CCPSA) was introduced in the House of Commons by the Honourable Leona Aglukkaq, Minister of Health, on 9 June 2010. Bill C-36 is very similar to Bill C-52, An Act respecting the safety of consumer products, which was introduced in the House of Commons during the 2^nd Session of the 39^th Parliament, and Bill C-6, An Act respecting the safety of consumer products, which was introduced in the House of Commons during the 2^nd Session of the 40^th Parliament. Bill C-52 had received second reading in the House of Commons and had been referred to the House of Commons Standing Committee on Health when it died on the Order Paper as a result of the dissolution of the 39^th Parliament. Bill C-6 also died on the Order Paper when the 2^nd Session of the 40^th Parliament was prorogued. At prorogation, the House of Commons had yet to consider amendments made to Bill C-6 by the Senate."

"Bill C-36 is designed to repeal and replace Part I of the Hazardous Products Act, creating a new system to regulate consumer products that pose, or might reasonably be expected to pose, a danger to human health and safety. The bill:

• prohibits the sale, manufacture, import and advertisement of certain listed products and provides for testing and evaluation of consumer products;
• makes it mandatory for manufacturers, importers, and sellers of consumer products to report dangerous incidents associated with these products to the Minister of Health;
• obliges manufacturers, importers and sellers of consumer products to report product or labelling defects that result, or might reasonably be expected to result, in death or serious adverse effects on health, including serious injury, to the Minister of Health;
• requires manufacturers, importers and sellers of consumer products to report recalls of consumer products initiated by governments and government institutions in Canada or elsewhere to the Minister of Health;
• provides for the inspection and seizure of consumer products for the purpose of verifying compliance or non-compliance with the bill's provisions;
• empowers the federal government to institute interim and permanent recalls of products that pose, or might reasonably be expected to pose, a danger to human health or safety; and
• establishes both criminal and administrative penalties for those who violate the CCPSA or orders made under it."
  

Library of Parliament Summaries on Food and Consumer Safety Bills

There are legislative summaries by the Library of Parliament for two consumer safety bills currently making their way through the federal legislature:

• An Act to amend the Food and Drugs Act (Bill C-51): "The bill essentially overhauls the existing Food and Drugs Act by restructuring its format and replacing pages of existing text with new text that does not necessarily relate in any way to the existing text. In addition to technical and consequential amendments, and the inclusion of new definitions, new regulation-making powers, transitional provisions and consequential amendments, the bill: creates new offences relating to food, therapeutic products (a new term used in the bill that includes drugs) and cosmetics; requires licences for importing food and for interprovincial trade in food; makes amendments to therapeutic product licensing; expands the powers of inspectors; adds new 'Administration and Enforcement' measures, including mandatory recalls of therapeutic products and cosmetics; substantially increases the penalties relating to offences; and provides for the disclosure of confidential business information in certain circumstances."
• Consumer Product Safety Act (Bill C-52): "This bill is designed to repeal and replace Part I of the Hazardous Products Act, creating a new system to regulate consumer products that pose, or might reasonably be expected to pose, a danger to human health and safety. Bill C-52: prohibits the sale of certain listed products and provides for testing and evaluation of consumer products; makes it mandatory for manufacturers, importers, and sellers of consumer products to report dangerous incidents associated with these products to the Minister of Health; obliges manufacturers, importers and sellers of consumer products to report product or labelling defects that result, or might reasonably be expected to result, in death or serious adverse effects on health, including serious injury, to the Minister of Health; requires manufacturers, importers and sellers of consumer products to report recalls of consumer products initiated by governments and government institutions in Canada or elsewhere to the Minister of Health; provides for the inspection and seizure of consumer products for the purpose of verifying compliance or non-compliance with the bill’s provisions; empowers the federal government to institute interim and permanent recalls of products that pose, or might reasonably be expected to pose, a danger to human health or safety; and establishes both criminal and administrative penalties for those who violate the CCPSA or orders made under it. "

It is possible to follow progress of the 2 bills via RSS feeds available on the following pages:

• Bill C-51
• Bill C-52