Sale of Goods

SMALL CLAIMS COURT: SALES OF GOODS

From time to time all of us buy some things that cost more than $500. Do you know that stores and other suppliers are not legally required to offer refunds or exchanges? Are you aware that some personal items, such as jewellery, are usually cannot be returned to the store? It’s important that you check the store’s policy before making a purchase or deposit. Not all stores will let you change your minds after you put deposits on items.

In Ontario, your consumer rights are protected by law, and no one can take those rights away from you. CP Paralegal Services can fight for your consumer rights if they had been broken. If you want a refund or exchange based on an unfair practice and a seller is not intend to do so, you have legal rights to file a claim in Small Claims Court. You are also protected against unfair business practices such as deceptive promotional and sales tactics.

Sales of Goods

When you buy goods you enter into a contract with the seller of those goods. In most cases, your rights are against the retailer – the company that sold you the product – not the manufacturer. The goods must be:

  • fit for purpose (for example, if you specifically asked for a printer that would be compatible with your computer)
  • as described in a brochure or any other description
  • of satisfactory quality, and

The law gives you a “reasonable” time to give a product back and get your money back if you buy a product that turns out to be faulty. However, even with something like a car, you usually have no more than a few weeks from the date you bought it to reject it. You have the right to get a faulty item replaced or repaired, if you want. You can ask the retailer to do either, but they can normally choose to do whatever would be cheapest. If the seller refuses to repair the goods, you may have the right to arrange for someone else to repair it, and then claim compensation from the retailer for the cost of doing this. If your claim ends up in court, you may have to prove that the fault was present when you bought the item and not, for example, something that was the result of normal wear and tear. If you paid by credit card, you may be able to enforce your rights against your credit card company as well as the retailer.

Improving Protection for Consumers Buying Cars

The Motor Vehicle Dealers Act, 2002 (MVDA) that came into force on January 1, 2010, includes:

  • Mandatory disclosures of vehicle history and key features: Dealers are obligated to disclose a vehicle’s true condition and history, including structural and flood damage, and the cancellation of the manufacturer’s warranty. In addition, when advertising, specific vehicle’s past use as a taxi or police cruiser, which often entails harder driving, must be disclosed.
  • 90-day contract cancellation for key non-disclosures: 90-day contract cancellation is available for consumers if certain key items are not disclosed by the dealers. These items include: failure to accurately disclose odometer readings; failure to disclose past use of a vehicle as a police cruiser, emergency service vehicle, taxi, limousine or daily rental; and failure to disclose that a vehicle has been branded as rebuilt or salvage.
  • Increase of claim coverage from $15,000 to $45,000: Consumers are eligible to have an increased range of claims satisfied by the Motor Vehicle Dealers Compensation Fund. For example, if a consumer made a deposit on a particular car and a dealership goes out of business, a consumer is protected under the Motor Vehicle Compensation Fund and can get the money back.
  • Canadian Motor Vehicle Arbitration Plan: Pre-purchase disclosure of whether or not the consumer would have the benefit of the Canadian Motor Vehicle Arbitration Plan is required to resolve any disputes concerning alleged manufacturer defects or implementation of the manufacturer’s warranty.
  • Maximum fines: Maximum fines under the MVDA 2002 have increased from the previous Act. Maximum fines for individuals are $50,000 – increased from $25,000 – and maximum fines for corporations are $250,000 – increased from $100,000.
  • All-inclusive price advertising for new and used vehicles: Dealers must adopt all-inclusive price advertising. This means that dealers must include freight charge, dealer preparation charge and other miscellaneous add-on fees in their advertising, so the only additional fees the consumers should expect to pay is taxes.
  • Code of Ethics: Code of Ethics has been adopted to enhance professionalism and improve honesty and integrity in the industry. Dealers are bound by a Code of Ethics which includes dealer-to-dealer disclosure obligations that support full disclosure to the final retail buyer/lessee.

Appliances

Home appliances are large investments that should last 5-10 years. You thought that it was about time to buy new appliances for your home: you went to a big warehouse, paid $1500 and got a promise from the seller to deliver it during a week. Nothing happened. In about 10 days you called them and asked when to expect the delivery. “Soon” was the answer. An entire month passed but there was no delivery. You got tired and frustrated and don’t want those appliances any more. You want your money back but the seller refuses to do so. Do you have grounds to make a claim to small claims court?

Estimates

Usually, you want detailed estimates before moving to another place, getting your car repaired, or renovating your home. The estimate should include as much details as possible about the work to be done and the rates charged. Do you know that once you have come to an agreement, the supplier cannot charge you more than 10% above the estimated price? You cannot be charged for unauthorized repairs or other work. You have right to cancel the agreement. Suppliers including movers or repairers cannot hold your goods ransom in order to pressure you into renegotiating the price.

Gift Cards

In the past few years, every one of us has got a gift card from relatives or friends, at least once. Gift cards are rapidly growing in popularity. Here, we are talking not about a 20-bucks gift card but, let’s say, a gift certificate for Caribbean Cruise for your parents or for a dining room furniture set for your newlywed granddaughter. And if something goes wrong, there are rules that ensure Ontario consumers get what they pay for when purchasing gift cards or gift certificates or get their money back.

Moving

Moving can be a stressful experience no matter what the distance. With careful planning and understanding of your consumer rights and responsibilities, you can avoid some of the common complaints. But if loss or damage took place, or disagreement occurred about cargo protection coverage, or the service was absolutely unprofessional, it may be a reason to file a claim in Small Claims Court.

Travel

Travel is the ninth most common consumer complaint at the Ministry of Government Services. Most involve not being able to cancel a trip and receiving false information about travel packages. Remember, you are protected under the law when you enter into a travel agreement.

Home Repair

If you have already agreed upon $10,000 renovation project and the final price suddenly became $15,000; if you were misled into unnecessary “emergency” repairs; or if … It may be lots of “ifs” between you and your renovation contractor. Don’t let the home renovation contractor talk you into making a large down payment “to pay for materials”. Keep down-payments to a minimum (about 10%) and never pay the full amount of the contract before the work is completed. This helps ensure that the home renovation contractor will stay to finish the job and protects you from financial loss if the company declares bankruptcy before the work is done. But is a costly mistake was made, contact CP Paralegal Services as soon as possible and we see what we can do for you.

Motor Vehicle Repair

A written estimate must be provided by the repairer. You must be told in advance if there is a fee for an estimate and the amount of it. The repairer shall give you an invoice indicating, among other things: the name of the consumer and repairer; the make, model, and plate’s number; date consumer authorized the work/repairs; and detail description of the work done and the repairs made. Repairers must provide a warranty on new or reconditioned parts and the labour required to install them for a minimum of 90 days or 5,000km, whichever comes first. If the vehicle becomes inoperable or unsafe due to defective repairs while under warranty, the customer must return the vehicle to the original repairer unless it is unreasonable to do so. If the vehicle is under warranty and repairs are made by another repairer, the consumer may recover the original cost of the work or repairs and reasonable towing charges.

Your basic rights under the Consumer Protection Act

If you believe an individual or business has wronged you, there are actions you can take. But first, you have to know your rights to determine whether you have a legitimate claim. You should know that important legislation protects your consumer rights by setting out ground rules covering most consumer transactions. Here is a list of your basic rights under the Consumer Protection Act, 2002:

You may be entitled to a cooling off period Let’s say you make a purchase or sign a contract in your home and then change your mind. If the deal is worth more than $50, you have the right to cancel within 10 days and get your money back. It’s best to cancel by registered mail or fax.
Remedies must be timely When you take advantage of your 10-day cooling off period and notify the company (preferably in writing) that you have changed your mind, the company has 15 days to return your money. The business has the right to take back the goods provided under the agreement by either picking them up or paying for the cost of sending them back.
If you are sent goods you didn’t ask for, you don’t have to accept or pay for them In fact, you may use them or throw them out. You’re not responsible for an unsolicited credit card either – unless you buy something with it.
Pre-paid goods or services over $50 must have a written contract When some part of the contract occurs in the future, written contracts are required for goods or services worth more than $50. The contract must contain complete details of the transaction and full disclosure of any credit terms.
Contracts must be clear and understandable Vague language is discouraged in contracts. All required information must be clear, prominent and easy to understand. If there is a dispute over unclear language, it must be interpreted in favour of the consumer by law
Credit terms must be fully disclosed Anyone providing goods or services on credit must give the consumer a written statement showing all financing charges and the annual percentage rate of the credit transaction. It must also explain how any extra charges would be calculated if you failed to make the payments
You have the right to seek help Some companies add arbitration clauses to contracts that require you to use a private arbitration process to resolve complaints instead of going to court or seeking assistance from the Ministry of Consumer Services. You are not bound by these clauses, even if you have accepted the agreement
Misrepresentation is illegal All charges in a contract must be what they say they are. For example, a business may not add a $20 surcharge for a “tax” that is not really for tax. Make sure you understand what each charge is for and that it’s valid.
Sales incentives may not be false, misleading or deceptive A salesperson can offer you an incentive to help find other buyers, but the description of the incentive cannot be false, misleading or deceptive
Consumer agreements must disclose all details If a company isn’t delivering on its contract with you, or if you encounter an aspect of the deal the company was required to disclose by law but didn’t, you have the right to cancel within one year
Your goods cannot be repossessed if you have paid 2/3 or more If you have paid at least two-thirds of the cost of your goods, a seller can’t take them back from you except by court order. But remember, if you miss a payment, the seller can take you to court to get full payment, and this could hurt your credit rating
Deliveries must be on time If a delivery doesn’t arrive within 30 days of the promised date, you can cancel the contract by sending a cancellation letter. But you lose the right to cancel the agreement if you accept delivery after the 30 days.
Anyone who violates the Consumer Protection Act, 2002 may be subject to prosecution Individuals violating certain sections of the act are liable to a fine of up to $50,000 or imprisonment of up to two years less one day. A corporation can be fined up to $250,000

Sale of Goods Related Proceedings in Small Claims Court

You might want to file a claim for Sale of Goods related matters in Small Claims Court if the damages you will request are not more than $25,000. The number of steps in a Small Claims Court proceedings varies from case to case.

Time Limits: There may be a time limit on how long you can wait before making a claim in Small Claims Court, which is set out in the Limitations Act. Under the law, the time you have to sue may run out. The deadlines vary depending on the circumstances of the case, and the type of case or claim. Check the time limits for your type of case. If you aren’t sure about whether you are still in time to make a claim, talk to CP Paralegal Services.

The following steps will have to be taken for your Sale of Goods related case in Small Claims Court:

  • Completing the Plaintiff’s Claim form: you will be required to write in the plaintiff’s claim form a short, clear summary of the events that took place and the reasons you think you are entitled to judgment against the defendant.
  • Deciding which Small Claims Court office to go to
  • Preparing all documents and evidences that can support your case
  • Filing the claim
  • Paying Small Claims Court fees
  • Serving the Plaintiff’s Claim after you have filed the claim with the court: you must prove that the defendant was properly served with the claim. You do this by filing an Affidavit of Service form.

If you have filed a claim and the defendant has not filed a Defence within 20 days, you can ask the court clerk to note the defendant in default. You do this by filing a Request to Clerk form. When a defendant has been noted in default you can ask the court to order them to pay money to you. This can be done by:

  • Asking the court clerk to sign default judgment for a specified sum of money for that you must fill out and file a Default Judgment form; or
  • Asking a judge to order default judgment. To do this, you file a Notice of Motion and Supporting Affidavit form. Explain the facts supporting your motion.

If it is a defended small court procedure, both parties should go for a settlement conference – a meeting with the parties and a judge to try to find an answer to the case that all parties can agree to. It must be held no later than 90 days after the first Defence is filed. There is a special rule for claims that are less than $2,500. The parties can agree to have a judge decide the case at the settlement conference. To agree to this, the parties must fill out a Consent form. The judge would decide the case at the settlement conference only if the parties could not reach a settlement. If the judge decides the case at the settlement conference, the case ends and there is no trial. At the trial each party tells their side of the story and the judge makes a decision.

What You Need to Consider BEFORE making Sale of Goods related claim in Small Claims Court

  • Ask yourself if a lawsuit that you are going to start will be worth it.
  • You will need the correct legal name of the person or business and a current residential or business address.
  • Information you need to have to support your Small Claims Court case: You will have to prove your case. Consider what witnesses and/or documents you have to support you: any written evidence, copies of documents, photographs and other that you intend to use to support your claim must be attached to the Plaintiff’s Claim form.
  • Time you have to spend: Can you take days off at work to file your claim, deliver documents, and attend in court for a trial? Are you willing to spend hours and hours for: 1) researching all guides on filing your claim; 2) researching all applicable Small Claims Court procedures and steps; 3) visiting Law Help Ontario at Small Claims Court – Pro Bono Law Ontario Duty Counsel are free lawyers that offer limited services to the public at the Toronto Small Claims Court; or 4) reading legislation on-line, for example the Limitations Act?
  • Consider other options to resolve the issue: To keep your costs low, you might want to try to reach an agreement out of court. This is called settlement. You may consider mediation, which is a less formal method of resolving a dispute through a neutral third party. Mediation can be less time-consuming, more flexible, and less expensive than proceeding in court. It can also help you find your own solution to the dispute and preserve your relationship with the person/business. CP Paralegal Services is always ready to provide you with mediation services.
  • Consider having help from CP Paralegal Services: keep in mind, court staff cannot provide you with legal advice or help you to complete all necessary forms. Do not relay on information from relatives and friends, unless they are lawyers or paralegals.

How CP Paralegal Services Can Help You with Sale of Goods Related Case in Small Claims Court

The list of reasons to make a claim for Sale of Goods related matter in Small Claims Court can be endless. Although, you do not need a lawyer or paralegal when you go to Small Claims Court, to have a knowledgeable and experienced party to defend your case is a good idea. Remember, CP Paralegal Services is always ready to help you with your Sale of Goods related matter. We think that the information above that we have gathered especially for you, has assured you that dealing with Small Claims Court claim is complicated and often is overwhelming even for professionals.

There are 5 reasons why you may consider asking CP Paralegal Services for assistance:

  1. At CP Paralegal Services, we have experience and knowledge; we know how to deal with your Sale of Goods related case in Small Claims Court.
  2. If you hire CP Paralegal Services to represent you in Small Claims Court for your Sale of Goods related case, we’ll go to the court office as many times as it necessary, we’ll come to the trial instead of you, and you will not be involved in a stressful process.
  3. You will not have to ask for a day off at work for filing and serving documents or attend the trial.
  4. CP Paralegal Services will develop the best possible strategy of your defence.
  5. We make sure that all evidences are well-organized for your Sale of Goods related case and all time limits are considered.

Do not make a mistake! Save your time, money and nerves!

Let CP Paralegal Services do their job while you are doing yours!

Do not forget that the other party is able to respond to your claim and may give evidence that will affect the judge’s view of your Sale of Goods related case. The particular details and proceedings for Sale of Goods related cases are very technical, tricky and complicated and, more likely, you will need professional assistance.