Archive
Around the Lakesby Charlie Stewart
Gray Merriam
LegaleseGeneral information and opinion on legal topics by Rural Legal Services
Letters
Mazinaw Musingsby Bill Rowsome
Nature Reflectionsby Jean Griffin
The Lady: She RantsBy Janice Lantz
Special FeatureTribute to David Brison
"Will that be credit, debit or cash?" (December 18, 2002)
The Christmas season is once again upon us. Keeping the following suggestions in mind is one way to ensure that not only Christmas but also the dreary winter weeks following remain joyous.
Debit cards are gaining in popularity these days. They provide the convenience of credit cards but, because the cash is taken immediately out of your bank account, there is no risk that you will spend more than you have in your account. By not buying on credit you will not be burdened with high interest charges on your credit cards after Christmas. However, because your debit card is equivalent to cash, exercise caution when using it to avoid unauthorized access to your cash. For example, make sure no one can see you entering your PIN at the point of sale. Interest rates on credit cards are generally higher than other types of loans. Each credit card has its own rules on how interest is calculated. The formula is set out in the Cardholder Agreement. Generally, you do not pay interest charges if, each month, you pay the entire amount set out in your monthly statement. If you fail to pay the entire amount, interest is charged in accordance with the formula. Interest charges on some cards are calculated on the average daily balance of the account. If you don't pay the entire amount of current charges each month, interest is charged from the time each purchase is posted to the account. For other cards, the interest is calculated based on the previous month's balance. The formulae are complicated and require computers to perform them accurately. The important point is that once you fall behind, the interest charges can mount up significantly. If you use credit cards, read and understand the rules on interest calculations. Don't set yourself up for any nasty surprises in the New Year.
"I'd like to return this Mochacappacinolatte maker." Consumers do not have an absolute right to return goods they have purchased. Many of us have been lulled into believing that we can return an inappropriate item because of the policy of some larger retailers of accepting items for a full refund with no questions asked. Nevertheless, many retailers will not accept returns. Others may accept returns but only for a "credit" against other purchases and still others may refund less than the full purchase price after deducting a service charge (sometimes called a "restocking" fee). Only in certain restrictive circumstances may a buyer have the legal right to return goods even though the store has a "no return" policy. For example, if the goods are defective or unsuitable and the consumer has relied upon the expertise of the seller in selecting the goods, or was unable to inspect the goods prior to purchase, then the consumer may be able to force the vendor to accept a return of the goods and to refund the full amount of the purchase price.
"This random number generator picks winning lottery numbers every time!!!!!" The Ontario Business Practices Act declares it to be an "unfair practice" to make a false, misleading or deceptive representation which may include a variety of representations about "sponsorship, performance characteristics, accessories, uses or benefits" that the goods or services do not have. Remedies under this legislation include terminating the contract (i.e. returning the goods and obtaining a refund) or damages (i.e. the difference between the actual price of the goods under the agreement and their fair market value). The Federal Government also imposes fines or penalties under the Competition Act for false or misleading advertising. The amount of the fine is, of course, intended to discourage the seller from engaging in that type of marketing practice. If you believe that you have been subjected to an unfair practice you should call the Ministry of Consumer and Business Services (Provincial) at 1-800-268-1142. If you wish to report misleading advertising you should call the Market Practices Branch of Industry Canada (Federal) at 1-800-348 -5358.
"The best of the Season!"
We at the clinic wish you the best of the Holiday Season and look forward to sharing some ideas with you in the New Year. If you have any questions or topics that you would like to see covered in the New Year, please let us know.Susan Irwin / Peter Graham / Tony Cuthbert
Last week we printed the first part of the following article by Felicite Stairs, a lawyer at the community legal clinic in Renfrew. The article is interesting, we think, because it highlights the contextual framework required to analyze the concept of disability. The following is the conclusion of the article. We wish to thank Felicite for sharing her insights with us.
The social context of local labour market characteristics and the availability of work has never been considered relevant to a determination of disability under CPP. In my view, this shows a very narrow understanding of disability. For example, a 45-year-old client of the clinics had a developmental delay. When he was younger, and the labour market in the County was very different, he was hired on by a friend of the family to do custodial work at a unionized workplace. His buddies watched out for him, helped him when he needed it, and he did fine. He worked steadily, even saving enough money to buy himself and his wife a house. Then free trade and the recession hit, and the workplace closed. He lost everything, and we have yet to see the labour market expand sufficiently to find a place for him again. He is clearly disabled, but is he disabled because of his intellectual disability, or because the labour market has changed?
What Does "Disability" Actually Mean? Part 2 (November 20 2002) Further, the contribution of personal characteristics such as age, education and work history to making someone disabled has been highly controversial until very recently. While it seemed obvious to us at the clinic that these were relevant, the decision makers at CPP and the Pensions Appeal Board were strongly of the opinion that they couldnt be taken into account in determining disability. Thus a 50 year old man unable to continue to do physical labour because of a bad back, who was illiterate, innumerate, and had a Grade 4 education, was determined not to be disabled despite the fact that he would never work again. However, several months ago the Federal Court of Appeal decided that these factors were relevant, and had to be considered. We dont yet know whether this will trickle down to the front-line decision-makers, but it certainly gives us strong case law to argue appeals. Unlike the CPP, the purpose of the Ontario Disability Support Program is to provide disability benefits to people with disabilities who are in financial need. Applicants must not only show that they are persons with a disability under the law, but their family income and assets must be low enough for them to qualify for social assistance. Unlike CPP, there are no contribution requirements. The issue is entirely whether the applicant meets the legal definition of disabled at the time they apply for benefits. To prove disability, applicants must show that they have a substantial physical or mental impairment, and that as a result they have substantial restrictions in their ability to attend to their personal care, or to function in the community, or to function in a workplace. The impairment and restrictions must be continuous or recurrent, and be expected to last for at least a year. Further, all of this must be verified by a qualified professional, that is, a health professional listed in the Regulations. At first glance this may seem like a less stringent test than CPP, but in fact 85% of applicants are denied the first time around. The ODSPA has only been in effect for 2 years. Advocates believe that the decision-makers at the Disability Adjudication Unit and the Social Benefits Tribunal are interpreting the test for disability too strictly, and there are a number of cases going forward to Divisional Court. An important victory was won last spring, when the Court decided that disability had to be considered in relation to the whole person, that is, taking into account their age, education and employment history. Where do we go from here? At the clinic, we fight for the right of people with disabilities to income security, to a pension. This is critically important work for the individuals involved. However, we should never lose sight of the people who have the disability. As a society, we need to be looking at ways to take away the socially constructed disabling factors, so that people with disabilities can take part in and contribute to society, which will benefit us all. -Felicite Stairs, Renfrew Community Legal Clinic
- Peter Graham, Lawyer
Rural Legal Services now serving northern Lennox & Addington (October 9, 2002) On August 15, 2002 Legal Aid Ontario finally agreed that: the Rural Legal Services catchment area be expanded to include the northern half of the County of Lennox & Addington known as Addington Highlands.
This decision followed on the heels of a legal needs survey funded by Legal Aid Ontario in 2001 to determine whether the residents of Lennox & Addington would benefit from the services of a community legal clinic such as Rural Legal Services. At the same time similar surveys were being conducted in other regions of the province as part of Legal Aid Ontarios commitment to improve access to legal services through expansion of the community legal clinic system.Not surprisingly there was resounding public support in all communities surveyed for the establishment of community legal clinics to provide free legal information and advocacy services. Lennox & Addington proved to be no exception.
Whether a community qualified for Legal Aid Ontario funding for its own community legal clinic or was to be included in the service area of an existing clinic was directly dependent on population density. Based on Statistics Canada population data, Legal Aid Ontario determined that the residents of Lennox & Addington should be served by an existing legal clinic located in one of the neighbouring counties. However given the size of the county and the marked differences between the northern and southern regions, it was ultimately decided (in accordance with the outcome of the legal needs survey), that the northern half of the county should be served by an existing legal clinic with a rural focus and the southern half by an entirely different legal clinic. The legal clinic with the rural focus is, of course, Rural Legal Services!
In the absence of their own community legal clinic the residents of northern Lennox & Addington have actually been accessing our services on an informal basis for a number of years even though our geographic mandate was limited to northern and central Frontenac Townships and Bedford District. So for Rural Legal Services its pretty much business as usual. Business as usual means the provision of the following services without charge:
Legal information and summary legal advice for all residents of our geographic service area. Although RLS is funded by Legal Aid Ontario, financial eligibility restrictions do not apply to this limited service. However, if it is determined that legal assistance beyond basic advice is required, and the person does not qualify financially for legal aid, the person will be referred to the private bar.
Representation before administrative tribunals and courts as well as the provision of further legal services for residents of our geographic service area who need more than summary legal advice and who do meet the financial eligibility criteria for our services. While we are unable to provide assistance in all areas of the law, we will attempt to refer you to someone who can provide the help required if we are unable to help.
Public Legal Education for all residents of our geographic service area. This is a very important aspect of our work and includes this weekly newspaper column as well as public information sessions. Most recently we have conducted sessions/workshops on Wills, Powers of Attorney, Employment Standards, Officers and Directors Responsibilities and Incorporation of not-for-profit organizations.
With the formal expansion of these services to the residents of Addington Highlands our greatest challenge will be to make them accessible. Unfortunately the decision to expand our geographic service area was not accompanied by any corresponding increase in funding from Legal Aid Ontario, although a legal clinic from Belleville was given additional monies to establish a satellite site in Napanee for residents of southern Lennox & Addington county. In light of this disparity and the distances involved for clients travelling from Addington Highlands to our offices, we have urged Legal Aid Ontario to re-examine their funding decision. Ideally we would also like to establish a satellite office in order to improve accessibility.
In the meantime, Land o Lakes Community Services Corporations and Northern Connections Adult Literacy Centre have generously offered space to assist us in making arrangements to see clients in Addington Highlands. At present we are planning to be in Northbrook on the first Wednesday of the month. Appointments can be arranged by calling us at 1-613- 279- 3252 or toll free at 1-888-777-8916. Legal information and limited legal advice may also be provided by telephone.
Additionally, appointments are encouraged at our Sharbot Lake office located at 14064 Highway 38 just south of the Sharbot Lake Bridge.
If you would like more information about our services, community legal clinics and legal aid or if you have an unanswered legal question, please give us a call. We look forward to hearing from you.
The Reasonable Parent Thirteen years ago this month, I moved from the quiet farming community of Granton, Ontario to embrace the challenges of rearing a family and practicing law in scenic northern Frontenac County, mosquitoes and black flies notwithstanding. It was therefore with interest, if not surprise that I read about a case from peaceful Granton that had made headlines in a national legal publication.
The case was noteworthy because it involves one of the few decisions under the new Parental Responsibility Act. Enacted in 2000, the Act allows an individual whose property is damaged or destroyed by a child under the age of 18 to bring an action in Small Claims Court to recover damages from the childs parent. Provided the individual is able to establish both the amount of damage and that the child caused the damage, the parent is only able to escape liability if he or she can demonstrate that they:
had exercised reasonable supervision; or had made reasonable efforts to prevent the child from causing loss or damage to the individuals property.In the case in Granton, the Small Claims Court had to decide whether the parents had exercised reasonable supervision where the damage to property occurred while the child was in the care of a babysitter. As the mother of three children who, from time to time has relied on the services of a babysitter, I was naturally concerned about the Courts decision in relation to my own potential liability. Knowing that others also rely on babysitters to watch their children, particularly in the summer, I thought the facts of this case and its outcome might be of interest to our readers.
During a summer day in August 2000, a 10-year-old boy and his 14-year-old babysitter broke into the home of William Shannon of Granton, Ontario, and helped themselves to jewelry and other valuables. While some of the property was eventually recovered, the value of the missing property was almost $20,000.
Upon learning of the theft, the parents of both boys took them to the police. Both sets of parents claimed they had tried to teach their sons not to take property that belonged to other people. The older boy was charged, and pleaded guilty to break, enter and theft, while the younger boy escaped criminal sanction because of his age.
However, both boys and their parents were sued by Mr. Shannon in Small Claims Court for the value of the lost property. A judgment, with the consent of all parties, was granted against the boys subject to the maximum $10,000 limit for damage awards in Small Claims Court. The parents, on the other hand, denied liability because they had acted reasonably.
It was argued by the parents of the 14-year-old that he was old enough to be left alone during the day without supervision. The parents of the 10-year-old noted that the older boy had supervised their son in the past without incident, including most of the summer. They argued that there was nothing in the background of either boy that would have led them to conclude that the 14-year-old was not sufficiently responsible to supervise their son. It was also pointed out that both boys had been given chores to complete each morning, and that the older boy was required to telephone his mother each day at lunchtime. The boys were then allowed to fish, swim, or bicycle in the afternoons.
Fortunately for the parents, the Judge found that the the standard imposed by the Parental Responsibility Act is one of reasonableness, not perfection. He concluded that it was reasonable for a 14-year-old to be left at home during the day without supervision. As for the younger boy, while it would have been preferable for him to be supervised by an adult, the arrangement was nevertheless reasonable. As such, neither set of parents was held liable for the childrens actions.
I dont know about you, but I have long since abandoned the illusion of being the perfect parent. Reasonable is more within the realm of possibility. As to whether my children find me a reasonable parent the jury is still out.
Buying Cottage Property - the Hidden Problems
I knew, by the smoke that so gracefully curld above the green elms, that a cottage was near; And I said, If theres peace to be found in the world, A heart that was humble might hope for it here. Thomas Moore
Many Canadians dream of escaping the hustle and bustle of the city in order to spend the lazy summer days at the cottage. If buying a cottage is on your to-do list then take a minute to read this article first.
Buying a cottage entails a number of potential hidden problems, and therefore it is not like buying a house. While it is always a good idea to have a lawyer review an agreement of purchase and sale, it is particularly important when purchasing a cottage. Unfortunately, many people tend to forget that an agreement of purchase and sale is a legally binding contract. Once you sign it, you have to live with it, including any less than favourable terms. The following are issues that may arise in the context of buying a cottage.
The description of the land: Most cottage lots have been created by what is referred to as a metes and bounds description. In other words, the boundaries of the property will likely be described by referring to natural landmarks. (e.g., beginning at the mouth of a branch at an ash stump, thence up the creek S 20 poles to 2 beach, thence east 41 poles to a small walnut in Arnetts line, etc.) Aside from this type of description not being that clear, there is the real possibility that some of these natural landmarks have either been moved or have disappeared all together. Therefore you may not be getting what you actually thought you were getting.
Access to the land: Another potential problem with cottage property is access, since it will often not be by a municipal road. Access may be over property belonging to one of the neighbours, or it may be a shared private road. It is important that the legal description of the land include the access. It should not be assumed that it will automatically be part of the description.
The Shoreline: A cottage lot does not always extend to the waters edge, since traditionally a width of 66 feet of shoreline was generally reserved to the Crown for a shore road allowance. In addition, the bed of the lake is owned by the Crown. If the cottage or other structures are encroaching on the shore road allowance, it may be necessary to buy the land from the government. If the shoreline or bed of the lake has been filled in or altered, it may be necessary to dismantle a structure, restore the shoreline or buy the property. In recent years, the Ministry of Natural Resources has gotten much stricter about infilling the bed of the lake, and it is now very difficult to get permission to fill in.
Although title insurance is often a reasonable substitute for an up to date survey when purchasing a city property, given the inherent boundary problems relating to the use of metes and bounds descriptions and moving shorelines it is usually a good idea to obtain an up to date building location survey when purchasing a cottage.
Drinking water: Drinking water is never a sure thing when it comes to a cottage, and therefore the appropriate warranties and conditions should be included in the agreement of purchase and sale. In addition, it will be necessary to confirm the rate of flow as well as the type of well servicing the cottage.
Septic System: It is equally important that the agreement include the appropriate warranties and conditions with respect to the septic system. You will want a copy of the installation report, showing where it is located, when the system was installed, and by whom.
Zoning: A building and zoning search will be required, particularly if the purchaser has visions of building or renovating the property or the existing cottage.
Disbursements: All real estate transactions will include a number of disbursements for searches, land transfer tax, legal fees and registrations. However, disbursements for a cottage property may be higher because additional and more complicated searches may be involved in order to address the issues mentioned above. Buying a cottage can be a fun, exciting time. However, it can also be fraught with obstacles because of the unique type of land involved. An experienced real estate lawyer will guide you through the process and will free you up to organize weekends at your summer retreat.
Note: From time to time, we receive calls concerning the purchase of real estate. Under the terms of our funding from Legal Aid Ontario, we are not able to accept retainers in real estate transactions, although we can provide general legal information. We are therefore grateful to the firm of Birenbaum Steinberg Landau Savin & Colraine LLP for their permission to reproduce this article that appeared in their firms summer newsletter, Legal Issues. Please note that this article offers general comments on matters of concern to businesses and individuals. The article is not intended to provide legal advice or opinions, and readers should seek professional legal advice on particular legal issues that concern them.
Marriage vs. common law relationships January 30, 2002 In a recent British Columbia Supreme Court decision, same sex couples were refused the right to marry. Not so long ago, federal and provincial laws were changed to recognize that same sex partners had many of the same legal rights and responsibilities as a man and a woman living together in a common law relationship.
So why the fuss over a piece of paper? Dont common law couples (including those of the same sex) have the same legal rights as married spouses?
The answer quite simply is no. In certain key areas of the law, ranging from the breakdown of a relationship to death, living together is not the same as being married. This difference can have serious economic consequences for the parties involved.
In this column we will provide a very brief overview of some of the issues that arise on the separation of married and common law couples.
Whenever a couple breaks up, each party wants to know what rights he or she has to the property accumulated during the relationship, who gets to stay in the house, and whether financial support is payable. For married spouses, lawyers look to the Divorce Act and the Family Law Act for the rules governing dissolution. Common law spouses are often surprised to learn that only limited statutory provision is made for them under Ontarios Family Law Act, and only if they have lived together for the prescribed period of time.
If a common law couple has lived together for at least three years, or else had a child together while living in a relationship of some permanence, the Family Law Act sets out the rules governing the payment of spousal support on separation. Childless couples that separate before the third anniversary of their common law relationship have no right to claim support under the Act. The right to claim spousal support is further limited to those common law spouses who bring the support application within two years of the date of separation.
In contrast, and regardless of how long a couple has been married, an application for divorce under the Divorce Act automatically raises the issue of spousal support and is not subject to the same two-year limitation period.
Beyond support, the Family Law Act makes no provision for common law couples when it comes to the division of property, including the couples home. The fact that two people have lived together, even for an extended period of time, does not automatically entitle one common law spouse to a share of the others property. While one party may argue that he or she is entitled to a fair share of the property that was accumulated during the relationship (and there have been many cases on this point), it is a difficult and often expensive argument to make successfully. Much will depend upon proving the intention of the parties, something that is far easier said than done.
For married couples however, the division of property is governed by a formula set out in the Family Law Act. First, the value of each partys net family property is determined. The Act defines a persons net family property as the value, at the date of separation, of all property he or she acquired during the marriage, less debts, liabilities, the value of property owned prior to the marriage, gifts from third parties, and inheritances. Following the breakdown of the marriage, and once this calculation is made, the Family Law Act stipulates that the spouse whose net family property is the lesser of the two is entitled to one half the difference between them.
From this complicated formula has grown the over simplification that upon the breakdown of a relationship, each party is entitled to a 50/50 share. Clearly the formula requires more than simply dividing by 2. Further, it must always be remembered that the statutory right to an equalizing share is only available to married spouses, and does not extend to common law relationships, same sex or otherwise.
Fortunately there are legal steps that common law spouses can take to protect themselves against the potentially harsh economic consequences of a break up. One way is to enter into a written cohabitation agreement whereby the common law spouses make their own rules to govern the division of property and payment of support at the end of their relationship. Married spouses are similarly free to enter into written agreements covering the terms of their separation.
When a relationship ends due to the death of a spouse, the legal implications for the survivor can be very different depending on whether or not the couple was married or living together, and whether or not the deceased left a valid will. These issues were canvassed in an earlier Legalese column that can be obtained by contacting the Clinic.
As well, if you would like more information on your legal rights as either a common law or married spouse, give us, or your own lawyer, a call. Although we are unable to provide representation in Family Law matters, we can provide legal information without charge, as well as referrals to other services or agencies.
Susan Irwin, Lawyer/Executive Director
Distance, Medical Expense and Income TaxIncome Tax - two words that can have all the unpleasant connotations of a sharply delivered expletive unless you are looking forward to a refund or just happen to be a well-adjusted Canada Customs & Revenue agent. While income tax is recognized as a necessary tithe to support essential government services, human nature being what it is, there arent many of us willing to pay one cent more than we have to, particularly if we question the wisdom of certain government spending. If youre one of those, taking advantage of all available tax credits and deductions is an effective means of reducing the tax burden that is fast approaching on the heels of this holiday season.
The medical expense tax credit is one such credit that can have a silver lining for rural residents who frequently must travel for medical treatment. Did you know that transportation costs to medical and dental appointments at least 40 km away can qualify as an allowable medical expense when calculating the medical expense tax credit? Or that you may be able to claim meal and accommodation costs when travelling more than 80 km? There arent many of us living in northern Frontenac or northern Lennox & Addington who dont travel at least that far to see Doctors, Dentists or other medical practitioners in Kingston, Perth, Ottawa, Smiths Falls, Napanee, Belleville or even the medical centres in Sharbot Lake or Northbrook. One thing we must all do in this neck of the woods is drive! So if you didnt think youd be able to take advantage of the medical expense tax credit you might want to give it a second look.
The medical expense tax credit, (the credit) is a non-refundable tax credit that reduces the amount of federal tax payable. It is non-refundable because even if you do not need the full amount of the credit to reduce your federal tax payable to zero you will not receive a refund of the remainder. Having said that, there is however a Refundable Medical Expense Supplement available for working individuals with low incomes experiencing high medical expenses.
The non-refundable credit applies to medical and dental expense claims paid for yourself, your spouse and your dependants during any twelve-month period ending in the taxation year (i.e. 2002) and not claimed in a previous taxation year. As well you can only claim the portion of medical or dental expenses for which you were not and cannot be reimbursed. Hence expenses covered by either the public or your private health insurance plan cannot be claimed.
For it to be worth your while to claim the credit, your total medical expenses must be more than $1,637 or 3% of your net income, whichever amount is less. For example, assume an individual in 2002 has a net income of $50,000 and $5,000 in qualifying medical expenses. Since 3% of $50,000 is $1,500 that amount will be used in calculating the credit, as it is less than the fixed figure of $1,637. The amount of the credit is then determined by multiplying the difference between the individuals total qualifying medical expenses ($5,000) and the ($1,500) by the lowest tax rate percentage (i.e. 17%). The individuals tax credit would then be $595 which is equal to 17% x ($5,000-$1,500)=$595.
However, not all of your medical expenses can be claimed for the purposes of the credit. Only those expenses stipulated in the Income Tax Act or the regulations qualify.
As indicated above, the transportation cost to a medical practitioner or hospital more than 40 km distant from your home to obtain medical services not available locally is recognized as an allowable expense. The amount of the expense can be determined by using either the simple or the detailed method. Under the simple method the expense is equal to the number of kilometres traveled multiplied by the allowable cent per kilometre for the province or territory where your travel began. In Ontario the current rate is 42.5 cents/km.
A simple or detailed method is also available for calculating meal expenses. Remember meal and accommodation expenses incurred in travelling for medical treatment not available locally and more than 80 km distant, can also be claimed as an allowable medical expense in addition to transportation costs.
Other qualifying medical expenses include:
The cost of travelling by ambulance to or from a hospital; Payments to a doctor, dentist, or nurse, or to a public or private licensed hospital; Payments for artificial limbs, wheelchairs, crutches, hearing aids, prescription eye glasses, contact lenses, laser eye surgery, dentures, pacemakers, and prescription drugs; Expenses for guide dogs and hearing-ear dogs; Payments for certain prescription medical devices; Some of the expenses for modifying your home or motor vehicle to allow you, your spouse or a dependant to be mobile and functional if either you or they have a mobility impairment or lack normal physical development; The cost of visual or vibratory signaling devices, such a visual fire alarm, to help people with a hearing impairment; Payments for therapy to help people adjust to speech or hearing loss, including training in lip reading and sign language.And so on. The above list of qualifying medical expenses is not exhaustive nor can this column possibly cover all the technicalities of determining eligibility for, or calculating and claiming the medical expense tax credit. Everyones situation is different.
However, if youve managed to wade through the column this far and would like more information you may wish to: talk to an accountant; telephone the Canada Customs & Revenue Agency (CCRA) at 1-800-959-8281; or visit the CCRA web site @ www.ccra-adrc.gc.ca
Isnt it nice to have something to look forward to after Christmas?
Susan Irwin, Lawyer/Executive Director
Consumer Protection and Electricity Retailing
On July 1, 2002 the government enacted additional consumer safeguards to protect consumers in that minefield we call electricity retailing. There is no doubt additional protection was required. The market for the supply of electricity with the deregulation of Ontario Hydro has the potential to confuse even the most sophisticated consumers who are trying to sort out unbundled services, and whether or not to purchase electricity from new suppliers with similar names. The trouble with the additional protection for consumers is that the rules are more confusing than the market itself.
Before July 1, a consumer who signed a contract with one of the new electricity retailers had a ten-day cooling off period. The consumer had ten business days from the date of signing to advise the retailer in writing, by fax, registered mail or personal delivery, that he or she wanted to cancel the contract. Upon receipt of the notice the contract was no longer in effect.
Now, the rules provide that the electricity retailer must deliver a copy of the written contract to the consumer within 40 days of the consumer signing the contract. If a copy of the contract is not delivered within the 40 days, the contract automatically ceases to have effect on the 41st day after the consumer signed the contract.
However if a written copy of the contract has been delivered to the consumer within 40 days of signing the contract, a new set of rules apply. The consumer has three options: (1) give notice to the retailer that he or she reaffirms the contract; (2) give notice to the retailer that he or she does not reaffirm the contract; or (3) do nothing.
If the consumer gives notice that he or she is reaffirming the contract, the contract continues in effect for the term set out in the contract. It should be noted that notice to reaffirm cannot be given earlier than the 15th day following the delivery of the written contract to the consumer.
If the consumer gives notice that he or she is not reaffirming the contract, the notice must be given within 30 days of receiving a copy of the contract and the contract ceases to have effect on the 31st day following delivery of the written contract to the consumer.
If the consumer does nothing, the contract also ceases to have effect on the 31st day following delivery of the written contract to the consumer.
What is the point, one may ask, of giving notice not to reaffirm when the same result is achieved by doing nothing? Why not follow the ancient Taoist principle: Do nothing and nothing will remain undone? The reason arises from the rules about how to give notice. One may give written notice by any means. The rules go on to say that notice may also be given by telephone, but only if a voice recording of the telephone notice is made.
The point is that if you are contacted by telephone by an electricity retailer to discuss the contract you have recently signed, listen for the beep, and keep in mind the foregoing rules to ensure you dont inadvertently reaffirm the contract. If you want to cancel the contract, I recommend that you do so in writing within 30 days of receiving a copy of the contract to avoid any confusion about whether the contract has been reaffirmed or not.
If you have any questions about the new rules please call us at the legal clinic. Your call will not be recorded.
Peter Graham, Lawyer
