In the era of e-commerce and cross-border trade, the applicability of manufacturer and distributor warranties is taking on renewed importance in light of private international laws contained in the Civil Code of Québec ("C.C.Q.") and the Consumer Protection Act ("C.P.A"). The Court of Québec recently considered this issue in Bousquet v. Acer America Corporation (Canada), 2012 QCCQ 1261, responding to two questions:
- Can consumers who purchased a good while residing or travelling outside Québec rely on the warranty provisions of the C.P.A. when they return or move back to Québec?
- How must the courts determine whether it is the consumer protection provisions of Québec or those of another jurisdiction that apply?
Online purchase made in Québec from Ottawa
In November 2009, while he was living in Ottawa and studying law at the University of Ottawa, Alexandre Bousquet purchased a computer manufactured by Acer on the Staples website. The computer was delivered to his Ottawa residence the following day, with the attached invoice indicating that it came from the Montréal distribution centre.
In April 2010, while he was still residing in Ontario, and while the manufacturer's conventional warranty was presumably still in force, Mr. Bousquet's computer broke down. He contacted Acer, asking the company to perform its obligations under the conventional warranty and to assume the shipping costs in accordance with section 49 C.P.A., which reads:
49. The merchant or the manufacturer shall assume the real cost of transportation or shipping incurred in respect of the performance of a conventional warranty, unless otherwise stipulated in the writing evidencing the warranty.
Acer refused to assume the shipping costs pursuant to the terms of its conventional warranty, so Mr. Bousquet paid $15 out of his own pocket to send his computer to the service centre. The computer was repaired and sent back to Mr. Bousquet's residential address in Ottawa at Acer's expense.
In September 2010, the computer broke down yet again. Mr. Bousquet had since moved to Gatineau, Québec. Once again Acer refused to pay the shipping costs, citing the same reasons as before. Once again, Mr. Bousquet sent the computer to the manufacturer, paying the $15 himself. The computer was repaired and returned to him, again free of charge, at his new address in Gatineau.
Claiming repeated and intentional breach of section 49 C.P.A. for Acer's failure to assume the shipping costs of approximately $30, Mr. Bousquet asked the Court of Québec to award $60,000 in punitive damages in addition to compensatory damages of $100.
Acer responded by challenging the jurisdiction of the Québec courts to hear the case. In addition, Acer argued that the dispute was subject to Ontario legislation, which, unlike section 49 C.P.A, does not contain an obligation to pay shipping costs.
Although the Court of Québec decided that the Québec courts had jurisdiction to hear Mr. Bousquet's claim, it nevertheless concluded that Ontario law governs the contractual relationship between him and Acer. Thus, Mr. Bousquet's claim founded on a violation of section 49 C.P.A. was dismissed.
Consumer Protection Act not always applicable
According to the Court of Québec, the C.P.A. is not currently part of the body of rules that transcend the ordinary rules of private international law that govern conflicts of laws, and which require mandatory or immediate application by reason of their particular object (article 3076 C.C.Q.). This is the case, for example, with the Act "respecting the civil aspects of international and interprovincial child abduction" which is automatically applicable. Regarding the Consumer Protection Act, the Court writes:
[TRANSLATION]
[121] What does all this mean?
[122] Essentially, that, under existing law, it is difficult to consider the Consumer Protection Act, whether in its entirety or only the chapter that specifically addresses warranties, as constituting rules of immediate application within the meaning of article 3076 C.C.Q. Globalization and the increasing likelihood of goods being purchased abroad by Quebeckers or brought under warranty into Québec by foreigners moving here may mean that this situation will have to change. Thus, issues surrounding the guarantees applicable to goods acquired online from companies operating worldwide might eventually be considered to fall under rules of immediate application.
To the extent that the Consumer Protection Act did not apply automatically, the Court turned to the provisions of the Civil Code of Québec regarding conflict of laws. It found that no conflict of laws rule under articles 3114, 3117, 3127 or 3128 C.C.Q allowed Québec legislation to apply to Mr. Bousquet's claim, because "the steps necessary to conclude a contract", namely the order, the transaction and the delivery, all took place in Ontario. It was therefore determined that Ontario legislation should govern Mr. Bousquet's recourse. The Court added that the applicable provisions of the Ontario legislation were not such as to produce results that were patently inconsistent with either international or Québec public policy.
Implications
Pursuant to this decision, consumers residing in Québec cannot automatically avail themselves of the C.P.A.'s warranty provisions simply because they reside in Québec during the time the warranty is in effect. Rather, the general conflict of laws rules must be examined to determine which law applies to a dispute. Practically speaking, the ruling provides that consumers who purchase goods under warranty while travelling abroad or living outside Québec cannot take advantage of the rules of the Consumer Protection Act when they move or return to Québec. It remains to be seen whether new claims of this type will lead to changes in the way the Consumer Protection Act is applied.
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