Key Points:

• Background:

  • In May 2018, the Purchasers (Bob Boyechko and Rita Sibbio) signed a contract with Sunray for a custom hot tub, paying a $2,500 deposit.
  • Sunray estimated a 10-12 week delivery, but the hot tub was delivered after over three years.
  • The Purchasers filed a complaint with Service Alberta in November 2019. The Director of Fair Trading found Sunray had contravened the Consumer Protection Act (CPA).
  • Sunray appealed the decision; the Appeal Board upheld the Order. Sunray then appealed to the Court.

• Issues on Appeal:

  • Jurisdiction: Whether the Director had the authority to issue the Order under the CPA.
  • Unfair Practices: Whether Sunray engaged in unfair practices under sections 6(2)(c), 6(3)(c), 6(3)(d), and 6(4)(n) of the CPA.
  • Procedural Fairness: Whether procedural fairness was afforded to Sunray during the Appeal Board hearing.

• Court’s Analysis:

  • Jurisdiction: The Court found that the hot tub constituted "goods" under the CPA. Thus, the Director had jurisdiction.
  • Unfair Practices:
    • Section 6(2)(c): The Appeal Board erred in concluding Sunray's delivery estimates constituted unfair practices since they did not affect the Purchasers’ decision to sign the contract.
    • Section 6(3)(c): The no-refund clause and open-ended delivery date were deemed harsh and excessively one-sided.
    • Sections 6(3)(d) and 6(4)(n): Sunray misrepresented delivery dates knowing they couldn't meet them, violating the CPA.
  • Procedural Fairness: The Court found the Appeal Board’s process fair despite some questioning tactics and procedural concerns.

• Outcome:

  • The Appeal Board’s finding on section 6(2)(c) was quashed.
  • The findings on sections 6(3)(c), 6(3)(d), and 6(4)(n) were upheld.
  • The Appeal Board’s compliance with procedural fairness was affirmed.

Conclusion:

• The Director’s jurisdiction was affirmed.
• Sunray’s practices under sections 6(3)(c), 6(3)(d), and 6(4)(n) were unfair.
• Procedural fairness was maintained throughout the Appeal Board’s proceedings.
• No amount specified for costs/award.