The Art of Complaining. Phil Edmonston

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СКАЧАТЬ President John F. Kennedy listed four basic consumer rights — to safety, to be informed, to choose, and to be heard. By 1985, the United Nations had expanded those four into a Consumer Bill of Rights, which includes the right to:

       safety

       be informed

       choose

       be heard

       satisfaction of basic needs

       redress

       consumer education

       a healthy environment

      Jim Guest, the President of Consumers Union and publisher of Consumer Reports magazine, believes there should be a ninth consumer right: the right to privacy. He had this to say at the fiftieth anniversary of the Consumer Federation of America Assembly on March 12, 2012:

      Who could have predicted that we’d have a tool like the Internet that provides so much opportunity, but at the same time, exposes each and every one of us to having our most personal information put at risk? Fundamentally, when I talk about consumer privacy, I’m talking about trust. When you hand over your private information to an online company, you’re trusting that your information will be treated fairly and responsibly.

      Guest’s warnings are particularly relevant to Canadians today. We have our own “Patriot Act,” called the Anti-Terrorism Act, which amended the CSIS Act and the National Defence Act (read Part V.1). We have also set up our own American Foreign Intelligence Surveillance Court under the CSIS Act. And Canada’s Communications listening is part of the “Five Eyes” international intelligence community, an alliance of five English-speaking countries that share signals intelligence.

      I have my own version of a consolidated list. I believe that, basically, citizens should be:

       sold safe products,

       given the facts needed to make informed choices,

       given a reasonable number of choices at a fair price, and

       able to access an attentive government that listens and responds positively to consumer grievances and suggestions.

      From Rights to Laws

      Today these rights are recognized and regulated through the codification of civil and criminal statutes. We have thousands of laws and regulations relating to warranties, product liability, misrepresentation (false advertising, etc.), competition (price-fixing), and negligence and punitive damages.

      Warranties

      The manufacturer’s or dealer’s warranty is an expressed verbal or written undertaking that a product or service will be as represented, or the contract will be cancelled. This promise remains in force as long as the warranty hasn’t expired.

      The main drawback of an expressed warranty is that it allows the seller and manufacturer to act as judge and jury when deciding whether a product is defective or a service is unsatisfactory. Rarely does it provide a money-back guarantee.

      Some of the more familiar lame excuses used in denying expressed warranty claims are “You abused the car”; “You spilled water on the cell phone”; “The dryer was poorly maintained”; “Bird droppings ruined your paint”; or, best of all, “It’s rusting from the outside, not the inside.” Or even “It passed the safety inspection.” Ironically, the expressed warranty sometimes says that the goods or services are guaranteed to have no guarantee.

      And, when the warranty’s clauses (or lack thereof) don’t deter claimants, some sellers simply say that a verbal warranty or representation as to performance or durability is unenforceable — not true. Fortunately, these attempts to weasel out of the warranty and limit the seller’s liability seldom make it through judicial review.

      Justice Searle put it this way in the Chams small claims court decision:

      Ford’s warranty attempts to limit its liability to what it grants in the warranty. It is ancient law that one who attempts to limit his liability by, for example, excluding common law remedies, must clearly bring that limitation to the attention of the person who might lose those remedies. The evidence in this case is clear: The buyer of even a new car does not get a warranty booklet until after purchasing the car although he “would be” told the highlights sooner (2013 Lemon-Aid New Cars and Trucks guide, pp.136–42).

      Thankfully, car owners get another kick at the can with the implied warranty — this is the promise of “fitness.” In the unreported Saskatchewan decision Maureen Frank v. General Motors of Canada Limited (see chapter 6), the judge declared that paint discoloration and peeling shouldn’t occur within eleven years of the purchase of a vehicle. Both of the above-cited judgments leave no doubt that the implied warranty usually trumps an expressed restriction.

      The implied warranty is solidly supported by a large body of federal and provincial laws, regulations, and jurisprudence, and it protects you primarily from hidden dealer- or factory-related defects. But the concept also includes misrepresentation and a host of other scams.

      This is a powerful “super” warranty that sellers never tell you about. It also holds businesses to a higher standard of conduct than private sellers because, unlike private sellers, professionals are presumed to be aware of the defects present in the products they sell. That way, they can’t just pass the ball to the manufacturer and then walk away from the dispute.

      The implied warranty is so effective with cars and other goods because it:

       is always in effect and cannot be abrogated by a bad faith clause in the contract like “sold, as is, without warranty”;

       is frequently used by small claims court judges to give refunds to plaintiffs “in equity” (out of fairness) rather than through a strict interpretation of contract law;

       establishes the concept of “reasonable durability,” meaning that parts are expected to last for a reasonable period of time as stated in jurisprudence, judged by independent experts, or expressed in extended warranties given by the manufacturer in the past through “goodwill” warranty extensions;

       covers the entire product and can be applied for whatever period of time the judge decides;

       can require that the product be taken back, or that a major repair cost be refunded;

       can help plaintiffs claim compensation for extra expenses incurred because of a product’s failure, including inconvenience, mental distress, missed work, lodging, and ruined vacations — as well as exemplary (or punitive) damages in cases where the seller behaved particularly badly;

       applies during and after the expiration of the manufacturer’s or dealer’s expressed or written warranty and requires that a part or repair will last a “reasonable” period of time.

      Product Liability

      Judges usually apply the implied or legal warranty when there’s no expressed warranty, or when the manufacturing defects remain uncorrected. Notably, two landmark judicial decisions uphold implied warranties in Canada, one relative to drinks served in a bar and the other concerning car quality. Additionally, our courts have been active in applying the implied warranty in everything from electronic goods to botched vacations, the habitability of rented apartments, СКАЧАТЬ