40:1 Bill 5, Wireless Phone, Smart Phone and Data Service Transparency Act, 2011

Orazietti, David

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Bill 5                                                            2011

An Act to provide transparency and protection for consumers of wireless telephone services, smart phone services and data services in Ontario

Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

Interpretation

   1.  Words and expressions used in this Act have the same meaning as in the Consumer Protection Act, 2002.

Application

   2.  (1)  Subject to subsection (2), this Act applies to future performance agreements, whether entered into before or after this Act comes into force, that meet the following criteria:

    1.  The agreement is in respect of wireless communication services that are accessed from a cellular phone or smart phone, including receiving or transmitting telephone calls, electronic data, email or text messages.

    2.  The consumer or the supplier is located in Ontario when the agreement is entered into.

Transition

   (2)  In the case of an agreement described in subsection (1) that was in effect on the day before this Act comes into force, this Act applies after the earlier of,

  (a)  three months after the day on which this Act comes into force; and

  (b)  an earlier date specified by regulation.

Conflict

   (3)  If there is a conflict between a provision of this Act and a provision of another Act or regulation with respect to the requirements of a future performance agreement, the provision that provides the greatest protection to the consumer prevails.

No waiver of substantive and procedural rights

   (4)  The substantive and procedural rights given under this Act apply despite any agreement or waiver to the contrary.

Requirements

   3.  (1)  A future performance agreement to which this Act applies shall be expressed in plain language that is clear and concise.

Same

   (2)  In addition to the requirements for future performance agreements in the Consumer Protection Act, 2002 and the regulations made under that Act, a future performance agreement to which this Act applies shall set out the following information:

    1.  A detailed description of each of the services to be provided by the supplier under the agreement and the duration of the agreement.

    2.  A description of any service offered at a discount and the duration of the discount.

    3.  The cost of each service to be provided under the agreement, including each optional service. 

    4.  If the cost of the services mentioned in paragraph 3 is payable on a monthly basis, the rate at which each service is charged.

    5.  If the cost of the services mentioned in paragraph 3 is payable on a periodic basis other than a monthly basis, the monthly equivalent of the cost.

    6.  The maximum usage limit on a service before the consumer becomes liable for costs that are in addition to the costs mentioned in paragraph 3.

    7.  If the cost of a service varies depending on the circumstances in which the service is used, including circumstances relating to the time of day, the day of the week or geography,

            i.  a description of how the cost varies with those circumstances, and

           ii.  a statement of how the consumer can obtain further information about the varying cost of the service.

    8.  A description of all other costs charged by the supplier, including any sign-up fee or any cost for any action required on the part of the supplier to activate the service under the agreement.

    9.  A description of any goods to be provided by the supplier under the agreement, including any goods sold at a discount or offered free of charge on the purchase of the service or services, and a statement of the cost of the goods under the agreement.

  10.  A statement of the amount that would have been charged by the supplier for the goods mentioned in paragraph 9 if the goods had not been sold at a discount or offered free on the purchase of the service or services.

  11.  A statement indicating whether the goods mentioned in paragraph 9 are new or used and, if the goods are used, whether they have been reconditioned. 

  12.  A statement indicating whether any goods sold on entering into the agreement are subject to any technological or physical feature that restricts the functioning of the goods to a service provided by the supplier or another particular service provider.

Same

   (3)  In a future performance agreement to which this Act applies, the supplier shall agree to do the following:

    1.  Remove, free of charge after the agreement expires, any technological or physical feature that restricts the functioning of the goods to a service provided by the supplier or another particular service provider.

    2.  Remove, free of charge if the consumer pays full price for the goods, any technological or physical feature that restricts the functioning of the goods to a service provided by the supplier or another particular service provider.

    3.  Alert the consumer when the consumer has reached 90 per cent of the service limit of any particular service under the agreement and is likely to incur additional charges as a result of exceeding the service limit.

    4.  Alert the consumer when the consumer is likely to incur additional charges as a result of attempting to use a service outside geographical limits, if any, that are set out in the agreement.

    5.  Provide the consumer with billing statements in paper form at no extra cost to the consumer, if requested by the consumer at any time during the duration of the agreement.

No payment for services during repair

   4.  (1)  A supplier of services under a future performance agreement to which this Act applies shall not demand, request or accept payment for services the consumer does not receive during a period in which goods provided by the supplier under the agreement are being repaired by the supplier, including goods sold at a discount or offered free of charge on the purchase of the service or services.

Application

   (2)  Subsection (1) applies whether or not the goods under repair are under warranty.

Exception

   (3)  Subsection (1) does not apply if the supplier provides the consumer with equivalent replacement goods during the repair period.

Same

   (4)  Subsection (1) does not apply if the damage to the goods under repair was deliberately or negligently caused by the consumer.

No extension of agreement

   (5)  Nothing in this section authorizes the extension of an agreement without the express consent of the consumer.

Amendments

   5.  (1)  A future performance agreement to which this Act applies shall only be amended if the consumer expressly consents to the amendment.

Confirmation

   (2)  If an agreement is amended in accordance with this section, the supplier shall give the consumer written confirmation of the amendment within 15 days.

Limit on consent to amend

   (3)  The consent of a consumer to amend an agreement under this section does not constitute consent to renew the agreement.

No automatic renewal

   6.  (1)  A future performance agreement to which this Act applies shall only be renewed if the consumer expressly consents to the renewal before the existing agreement expires.

Status after agreement expires

   (2)  Despite subsection (1) and subject to subsection (3), if an agreement expires and has not been renewed, the supplier and consumer shall be deemed to have renewed it as a monthly agreement containing the same terms and conditions that are in the expired agreement.

Payment under agreement deemed renewed

   (3)  If an agreement is deemed to have been renewed under subsection (2), the consumer is not required to pay a higher monthly fee than the monthly equivalent of the cost of the services provided under the expired agreement.

Duration

   (4)  An agreement deemed to have been renewed under subsection (2) shall be in place for a maximum of three months, after which time,

  (a)  the supplier may stop providing service to the consumer; or

  (b)  the supplier and the consumer may negotiate a new agreement.

Cancellation

   7.  (1)  A consumer may at any time, without any reason, cancel a future performance agreement to which this Act applies on giving 30 days notice.

Confirmation

   (2)  If a consumer cancels an agreement under subsection (1), the supplier shall provide written confirmation to the consumer that the agreement has been cancelled.

Fee

   (3)  A consumer who cancels an agreement under this section is not liable to pay any cancellation fee that is greater than,

  (a)  if payments are payable on a monthly basis, the cost of one month of service under the agreement; or

  (b)  if payments are payable on a periodic basis other than a monthly basis, the equivalent of one month of service under the agreement.

Additional fee for agreement involving discounted goods

   (4)  Despite subsection (3), if a consumer cancels an agreement under which the consumer purchased goods at a discount or received goods free of charge, the supplier may charge an additional cancellation fee that is not greater than the amount calculated in accordance with the following rules:

    1.  Subtract the amount paid by the consumer for the goods from the amount that would have been charged by the supplier for the goods if the goods had not been sold at a discount or offered free of charge.

    2.  Divide the amount determined under paragraph 1 by the total duration of the agreement, expressed in months.

    3.  Multiply the result obtained under paragraph 2 by the number of full months remaining between the date of cancellation and the date on which the agreement expires.

    4.  The amount calculated under paragraph 3, rounded to the nearest cent, is the maximum additional cancellation fee the supplier may charge under this subsection.

Advertising

   8.  If a supplier advertises a price for a particular service as part of an advertisement for a future performance agreement to which this Act applies, the supplier shall ensure that the advertisement also contains a more prominent statement of the total cost to the consumer on a monthly or other periodic basis of all services to be provided under the agreement.

Pre-paid cards

   9.  (1)  For the purposes of this section, a pre-paid card is a voucher in any form, including an electronic credit or written certificate, for a fixed amount of service that is to be provided under a future performance agreement to which this Act applies.

No activation date limit

   (2)  No supplier shall sell or offer to sell a pre-paid card that requires activation by a particular date.

No expiry

   (3)  No supplier shall sell or offer to sell a pre-paid card that has an expiry date on the future performance of the agreement.

Enforcement

   10.  Part IX of the Consumer Protection Act, 2002 (Procedures for Consumer Remedies) applies, with necessary modifications, to remedies claimed in respect of future performance agreements to which this Act applies.

Regulations

   11.  The Lieutenant Governor in Council may make regulations specifying the date after which this Act begins to apply to agreements for the purposes of clause 2 (2) (b).

Commencement

   12.  This Act comes into force on the day it receives Royal Assent.

Short title

   13.  The short title of this Act is the Wireless Phone, Smart Phone and Data Service Transparency Act, 2011.

 

EXPLANATORY NOTE

The Bill enacts the Wireless Phone, Smart Phone and Data Service Transparency Act, 2011. The Act applies to future performance agreements in respect of wireless telephone, smart phone or data services. A “future performance agreement” is defined in the Consumer Protection Act, 2002 as a consumer agreement in respect of which delivery, performance or payment in full is not made when the parties enter the agreement.

Major features of the Bill include the following:

    1.   The Act applies to agreements in respect of wireless telephone, smart phone or data services, whether entered into before or after the Act comes into force, if the consumer or the supplier is located in Ontario when the agreement is entered into. The Act includes a transition period for agreements in effect on the day before the Act comes into force.

    2.   An agreement for wireless telephone service, smart phone service or data service must be expressed in plain language.

    3.   An agreement must contain certain information with respect to descriptions of services and goods to be provided under the agreement, and statements of all associated costs.

    4.   A supplier must agree to remove any technological or physical feature that restricts the functioning of the goods to a service provided by a particular service provider when a consumer pays full price for the goods or when the agreement expires.

    5.   A supplier must agree to notify a consumer when the consumer has reached 90 per cent of the limit of any particular service under the agreement, as well as when the consumer is about to incur charges for attempting to use a service outside geographical limits set out in the agreement.

    6.   A consumer is not liable to pay for services not received during a period when goods provided under an agreement are being repaired by the supplier.

    7.   No agreement may be amended or renewed without the express consent of the consumer. If an agreement expires without being renewed, the agreement is deemed to continue as a monthly agreement for a maximum of three months.

    8.   A consumer may at any time, without any reason, cancel an agreement on giving 30 days notice, and cancellation fees are limited.

    9.   Rules are established with respect to advertising prices for wireless telephone, smart phone and data service.

10.   Pre-paid cards for a fixed amount of service may not be sold if they require activation by a particular date or if they have an expiry date.

11.   The enforcement provisions of the Consumer Protection Act, 2002 apply to the Act, with necessary modifications.

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