Consumer Protection and Products Liability Law

The European Commission announced last Wendesday that it has decided to open formal proceedings against CISAC (the “International Confederation of Societies of Authors and Composers”) and the individual national collecting societies that are members of CISAC and has sent them a Statement of Objections (SO).

The Commission doesn't question the practice of collective administration of performing rights. The SO concerns only certain relatively new forms of copyright exploitation: internet, satellite transmission and cable retransmission of music.

This commentary was first published in the Financial Post on November 4, 2008.

Last August, 4,500 Zoom Airlines passengers found themselves stranded across North America, the West Indies and various European countries when the airline ran out of money and grounded its planes. Passengers were left to pay for their return journey home and figure out how to recover the payments they had made to the airline. Their prospects were dim.

Since Zoom Airlines had declared bankruptcy, the best the passengers could expect was to be treated as unsecured creditors of the airline-- ranking at the bottom of the ladder in the distribution of Zoom's assets. Passengers must yield to the prior claims of Crown trust claims (for unremitted employment insurance premiums and tax deductions), secured creditors and preferential creditors. Typically, unsecured creditors recover no more than five cents on the dollar of their claims and often nothing at all.

This commentary was first published in the February 20, 2009 issue of The Lawyers Weekly (published by LexisNexis Canada Inc.).

The last twenty five years have not been kind to consumers in Canada. This is not because of a lack of  consumer protection laws - quite the contrary. The reason is almost entirely due to the unwillingness of the federal and provincial governments to provide the necessary resources for the enforcement of the laws that exist. As a result, much of the legislation has no bite to it and is often openly flouted in practice.

Fortunately, however, an unexpected best friend of consumers has appeared from almost nowhere to come to the consumer's aid. That best friend is class actions. A class action is an action brought on behalf of all members of a designated class of plaintiffs who claim to have been adversely affected by the defendant's wrongful conduct and who seek relief. If the action is successful, it may result in a large sum of money being paid into a fund for distribution among the members of the class or a finding that the members of the class have a valid cause of action and requiring the members to prove what damages they have suffered individually.

Jacob Ziegel is a Professor of Law Emeritus, University of Toronto. Professor Ziegel has written widely about consumer law problems.

As Canadians brace themselves for the hardships of the country’s worst recession in more than twenty-five years, they are entitled to ask what protection they can expect against the many abuses that abound in the market place and the many more that are sure to emerge as unconscionable businesses and outright swindlers seeks to exploit consumer vulnerabilities during the recession.

The answer to the question is that consumers can expect very little help from federal or provincial governments. In some cases, in fact, governments are part of the problem and not likely to provide the solutions.

The picture was not always so bleak. In the 1970s, a wave of euphoria swept across Canada and federal and provincial governments vied with each other in introducing new consumer protection legislation and in establishing new ministries to administer and enforced the new programmes. Canada was the first country to establish a federal Department of Consumer and Corporate Affairs, and Ontario followed closely on its heels with the establishment of a Ministry of Consumer and Commercial Relations.