Québec Bill 29, An Automotive Perspective – A Potential Right to Repair, Planned Obsolescence Ban and Lemon Law

Québec Bill 29, An Automotive Perspective – A Potential Right to Repair, Planned Obsolescence Ban and Lemon Law

The Province of Québec is known for the generous protections afforded under its Consumer Protection Act[1] (the “QCPA”), including certain statutory warranties of durability and fitness for purpose that may not be avoided or disclaimed by companies doing business in the Province[2].  This robust regime may yet become even stronger with the tabling of Bill 29 – An Act to protect consumers from planned obsolescence and to promote the durability, repairability and maintenance of goods[3].

This is not the first time legislation enshrining these concepts is proposed[4], although prior attempts were the initiative of individual MPs, whereas the current legislation emanates from the Government and seems to carry more traction, based notably on popular concepts of sustainability, environmental protection and consumer rights.  Work on the Bill is expected to resume when the National Assembly reconvenes in the fall of 2023.

In this bulletin, we refer to the new bill as “Bill 29”, and the QCPA, as it would be amended by Bill 29, as the “Amended QCPA”.  We further examine the impacts and the right to repair mechanisms it creates on all products sold in Quebec, as well as certain rules that will apply specifically to motor vehicles and their manufacturers.  We finally review the updates to (and strengthening of) the applicable sanctions.

General Requirements

The core of Bill 29 consists in:

• Banning the planned obsolescence of a good, being any technique aimed at reducing a product’s normal operating life, and the sale of such goods[5]; and
• Giving consumers the right to repair their goods, including by banning the use of techniques that would make it more difficult for the customer to repair a product[6].

For instance, the QCPA has long required companies to maintain a replacement parts inventory and repair services for a reasonable period after a sale, unless such availability was disclaimed in writing[7]. However, under the Amended QCPA, regulations may specify certain types of parts or services that may not be excluded[8]. These regulations will also require disclosures by the merchant and/or manufacturer of certain information relating to the availability of replacement parts and repair services, as well as information necessary to perform that maintenance[9]. Bill 29 further specifies that replacement parts should be installable using commonly used tools and without damaging the product[10]. In addition, repairs must be made possible at a reasonable price which does not discourage the customer from accessing it[11].

Bill 29 also introduces a new punitive scheme for merchants and companies that fail to maintain a generally available inventory of parts or repair services. The consumer may then request that the manufacturer or the seller repairs the product himself[12]. If the merchant or manufacturer doesn’t respond to the customer’s request within 10 days[13] or if it agrees to make the repairs, but doesn’t meet the agreed deadline for repairs[14], it will be forced to replace or refund the entire product[15]. The customer will also have the option of accepting or refusing the repair deadline offered by the seller. If the consumer refuses, he/she will have the option of having the product repaired by a third person, at the expense of the seller or manufacturer[16].

Automotive Specific Requirements

While the aforementioned requirements will be applicable to all types of goods and items, Bill 29 also seeks to create requirements that specifically apply in an automotive context. For instance, in keeping with the modernizing intent of the legislation, Bill 29 will now require automobile manufacturers to grant car owners, lessors and repairmen with free access to an automobile’s data for purposes of diagnostic, maintenance or repair[17].

Perhaps more substantial is the creation of a regime meant to cover “seriously defective vehicles”, which is reminiscent of lemon laws in the US that protect consumers against vehicles that spend more time at the mechanic than on the road[18]. In Québec, a seriously defective vehicle would be defined as meeting all following criteria:

1.   Having been the object unsuccessful repair attempts:

1. three times for the same defect;
2. twelve times for unrelated defects; or
3. where the repair remains unsuccessful after 30 days in the shop;

2.   Being unfit for its use or substantially less useful as a result; and

3.   The above manifests within 3 years and 60,000 kilometers.

If a court finds these criteria to have been met, the vehicle is deemed to have been affected by a hidden defect, which could ultimately lead to the cancellation of the sale.  The characterization must also be disclosed at the time of any subsequent resale, which may significantly affect the vehicle’s value[19].

Bill 29 also creates new protections for consumers leasing vehicles, notably including:

1.   Prohibition of imposing a fee because service was not performed by, or parts were not sourced from an OEM or lessor approved vendor[20];

2.   Prohibition of imposing a fee because the vehicle is returned with repair parts that do not meet a certain standard, unless that standard was specified in advance in writing[21];

3.   Right to a free inspection before the end of the lease, aimed at identifying abnormal wear and tear, and notice requirements if lessor intends to make such a claim.  Failing to meet those requirements forfeits the right to make any claims at the time the vehicle is returned.[22]

Finally, the statutory warranties benefitting used vehicles are also improved[23].

Penalties and Sanctions

Prior to Bill 29, anyone who failed to comply with the QCPA or its regulations committed an offence and was subject, in most cases, to monetary penalties between $600 and $6,000 for individuals or $1,000 and $40,000 for corporations.[24] For repeat offenses, the aforementioned maximum and minimum amounts were doubled. Bill 29 raises and diversifies these penal sanctions. Violations are now grouped into different categories, each of which gives rise to different fines. For example, violations of rules relating to the form and content of consumer contracts will carry a fine of $1,500 to $37,000 for physical persons and $3,000 to $75,000 otherwise. For other violations, such as failure to obtain required permits, giving false or misleading information or failing to comply with a decision or a requirement of the provincial consumer protection regulator, the fines may be as high as $175,000 for a corporation and $87,500 for a physical person.

Furthermore, when considering these new minimum and maximum thresholds, Bill 29 requires courts to take into account six new criteria in order to determine the amount of pecuniary penal sanctions:[25]

1.  the violating party’s business, assets, turnover, income or market share;

2.  the ability of the violating party to take reasonable measures to prevent the commission of the offence or mitigate the consequences of the violation when they  failed to do so;

3.  the pecuniary or other benefits derived or that could have been derived from the commission of the offence;

4.  the economic harm caused to consumers by the commission of the infringement;

5.  the number of consumers harmed or who could have been harmed by the commission of the infringement;

6.  the offender’s past conduct with respect to compliance with the QCPA, including failure to act on warnings to prevent the offence.

Administrative Sanctions

In addition to significantly reforming monetary penalties for penal offences, Bill 29 creates a new category of administrative sanctions. The Bill is currently silent on exactly which breaches would give rise to administrative sanctions, preferring to leave this up to the government to decide in future regulations. However, Bill 29 still establishes general rules governing this new type of sanctions,[26] such as a two-year time limitation,[27] and specific notice requirements.[28]

A crucial addition in this section is the ability to secure the payment of administrative sanctions by encumbering the violating party’s movable and immovable property with a legal hypothec. [29] This implies that Quebec’s consumer protection regulators may be able to seize a violator’s property in order to ensure payment of administrative sanctions.

It remains to be seen which breaches will give rise to administrative sanctions under future regulations following the adoption of Bill 29. These future regulations should also establish the exact amounts and method of calculating such administrative sanctions.[30] Nevertheless, the prescribed amount will not be able to exceed $1,750 for individuals and $3,500 for non-individuals.[31]

[1] Consumer Protection Act, CQLR c P-40.1 (the “QCPA”)
[2] QCPA, arts. 34-54.
[3] Bill 29, An Act to protect consumers from planned obsolescence and to promote the durability, repairability and maintenance of goods, 43rd Legislature, 1st Session.
[4] E.g. Bill 195 – An Act to amend the Consumer Protection Act to fight planned obsolescence and assert the right to repair goods (43rd Legislature) and Bill 197 – An Act to amend the Consumer Protection Act to fight planned obsolescence and assert the right to repair goods (42nd Legislature).
[5] Amended QCPA; art. 227.0.4.
[6] Amended QCPA; art. 227.0.3. par. 1
[7] QCPA, art. 39.
[8] Amended QCPA; art. 39 par. 3
[9] Ibid; art. 39.1-39.2
[10] Ibid, art. 39(2)
[11] Ibid; art. 39.3
[12] Ibid; art. 39.5
[13] Ibid; art. 39.6
[14] Ibid; art. 39.7
[15] Ibid; art. 39.6-39.7
[16] Ibid; art. 39.7
[17] Ibid, art. 39.4. The QCPA often refers to road vehicles more broadly, but here the Legislator seems to limit the requirement to automobiles, but exclude motorcycles, for instance.
[18] Ibid, s. 53.1.
[19] Ibid, art. 156 (d.1) and 237.1.
[20] Ibid, art. 150.9.1(b)
[21] Ibid, art. 150.9.1(a)
[22] Ibid, art. 150.17.1.
[23] Bill 29, art. 12
[24] QCPA, arts. 277, 279.
[25] Ibid, art. 282.
[26] Amended QCPA, article 276.1 al.1.
[27] Ibid, article 276.4.
[28] Amended QCPA, article 262.3
[29] Ibid, article 276.8.
[30] Ibid, article 276.1 al. 2.
[31] Ibid.

by Emile Catimel-Marchand, Sidney Elbaz, Andrei Pascu, Simon Paransky, Lila Perrier (Law Student), Ariane Tousignant (Law Student)

A Cautionary Note

The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

© McMillan LLP 2023