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The Consumer Protection (Amendment) Act, 2012

 Act to amend the consumer Protection Act

JAMAICA

No. 13 -2012

I assent,

[L.S.]

U4g,(2/L~ .> Governor-General,

AN ACT to Amend the Consumer Protection Act. The date notified by the Ministn

[ bringing tltt Act into operation ] BE IT ENACTED by The Queen's Most Excellent Majesty, by and

with the advice and consent of the Senate and House of Representatives of Jamaica, and by the authority of the same, as follows:­

1. This Act may be cited as the Consumer Protection Short title. (Amendment) Act 2012 and shall be read and construed as one construction, , and com­ with the Consumer Protection Act (hereinafter referred to as the mencement. principal Act) and all amendments thereto, and shall come into operation on a day to be appointed by the Minister by notice in the Gazette.

2 [No.] The Consumer Protection (Amendment) Act. 2012

Amendment 2. Section 2 of the principal Act is amended by- ofsection 2 of principal Act. (a) inserting next after the definition of "business" the

following definition­

"Commission" means the Consumer Affairs Commission established under section 5;";

(b) deleting the definition of "provider" and substituting therefor the following­

"provider" in relation to­

(a) any goods, means a person who sells such goods;

(b) any services or facilities, means a person who provides such services or facilities,

whether on a regular basis or as a single transaction;

"services" means the supply to a consumer of anything for a consideration which is not a supply of goods, other than the rendering of any service under a contract of personal services or employment services;

"Tribunal" means the Consumer Protection Tribunal established under section 44A.".

Amendmont 3. Section 6 oCthe principal Act is amended­ ofseorlon 6or principal Act. (a) in subsection (1), by­

(1)- .' re-lettering paragraphs(c)'to (h) as paraaraphs " {e) to 0);.' '. " ,.I

(it) Insertina next after~"Flph (b) the followiq as paragraphs (0) and (dr­

*'(c) keep proper recoMa ofall consumer complaintll; all actions taken in relatIon to such complaints and the retluits of thOle actions and thole records shall t. ­

(t) appropriately indexed ana eategorlMd to allow fot ease of aeee!i!i Sltd reproduction;

The Consumer Protection (Amendment) Act, 2012 [No. J 3

(ii) maintained in a condition appropriate for public inspection:

(d) as it thinks necessary and acting on its own initiative. institute and carry on legal proceedings against a provider for any contravention ofthis Act;"; and

(b) deleting subsection (3) and substituting therefor the following­

., (3) The Commission­

(a) may investigate on its own initiative, any breach by a provider of any provision of this Act; and

(b) shall investigate any action aJleged, in a complaint to the Commission, to have been taken by a provider, which adversely affects the complainant or is in contravention ofany provision ofthis Act in the manner provided under sections 7, 8,9, 10. 11 and 12:'.

4. Section 7ofthe principal Act is amended by deleting subsection Amendment (4) and substituting therefor the following- of,",:lion 7 of

pnnclpal Act.

(4) The Commission may­

(a) in its own name, institute legaJ proceedings under this Act on behalf of the com­ plainant; or

(b) provide legal support and assistance to a complainant under this Act.".

S. Section 21 of the principal Act is amended- Amendment ofscction 21

(a) in subsection (2) by deleting the words u(local or orprincipal foreign)" and substituting therefore the words "(whether Act. the manufacturer operates from within Jamaica or outside ofJamaica)";

4 [No. ] The Consumer Protection (Amendment) Act. 2012

(b) by inserting next after subsection (6), the following as subsections (7) and (8}­

" (7) Where a provider is in breach of a contract with a consumer, the consumer may recover damages for any loss suffered as a result of the breach, that was reasonably foreseeable at the time ofthe contract.

(8) A provider who fails to issue a warranty or extend a manufacturer's warranty (whether the manufacturer operates from within Jamaica or outside ofJamaica) in accordance with subsections (1) and (2). commits an offence and shall be liable on summary conviction before a Resident Magistrate, to a fine not exceeding two million dollars or to imprisonment for a term not exceeding two years or to both such fine and imprisonment.".

Amendment 6. Section 24 of the principal Act is amended by deleting ofsection 24 subsection (2) and substituting therefor the following- ofprincipal Act. .. (2) A provider to whom goods are returned pursuant

to subsection (1) shall, after taking such time as is reasonably required to verify the matters referred to in subsections (1) and (3), offer to the consumer in exchange for the returned goods, monetary compensation to the value ofthe goods or such other amount as may be agreed between the consumer and provider.".

Amendment 7. Section 30 ofthe principal Act is amended in subsection (2), ofsection 30 by inserting immediately after the words "summary conviction" theofprincipal Act, words "before a Resident Magistrate".

Amendment 8. Section 32 of the principal Act is amended by renumbering ofsection 32 ofprincipal subsection (3) as subsection (4) and inserting next after subsection Act. (2), the following as subsection (3)-­

" (3) The specified price referred to in subsections (1 ) and (2), shall include aU components ofthe total price pay­ able by the consumer in respect of the goods or services, including the applicable general consumption tax and any other taxes, duties or charges.".

The Consumer Protection (Amendment) Act. 2012 [No. ] S

9. The principal Act is amended by inserting next after section Insertion of 32 the following as section 32A- ;:::'iOft

- Advertising 32A.-{I) The provider shall- principelAct. standards.

(a) ensure that every contract of sale and every advertisement, in relation to goods or services offered by that provider­

(i) is conspicuous,legible and in simple and easily under­ standable language; and

(ii) sets out the terms and conditions of the contract or advertisement. as the case may be; and

(b) take reasonable steps to bring those terms and conditions to the attention of its consumers.

(2) For the purposes ofsubsection (I) (a), if there is doubt as to the meaning of a term or conditionofacontract, the interpretation that is most favourable to the consumer shall prevaiL...

10. Section 33 of the principal Act is amended by deleting Amendment subsection (2) and substituting therefor thefollowing- °ffs~t~ 33

o pnnclpa1

•• (2) Where a provider fails without reasonable cause Act. to meet the advertised delivery date and the consumer elects not to accept the goods, the provider shall refund to the con­ sumer­

(a) all monies paid plus interest with respect to the period beginning with the date ofthe deposit of the amount and ending on the date ofits refund; or

(b) where the provider has withheld a portion of the monies paid by the consumer, claiming an administrative, restocking or any other fee charged,

6

Amendment of section 43 of principal Act.

Amendment ofsection 44 ofprincipal Act.

Insertion of new sections 44A,44B.44C. 44D. 44E. 44F and44Gin principal Act.

[No.] The Consumer Protection (Amendment) Act. 2012

all such monies withheld, including interest accrued with respect to the period beginning with the date ofthe deposit ofthe amount and ending on the date ofits refund,

at a rate of fifteen per cent per annum or such other rate as the Minister may, from time to time, by order prescribe.".

11. The principal Act is amended by inserting immediately after section 43, the following­

"Part VII. Settlements ofDisputes"

12. Section 44 of the principal Act is amended by­

(a) renumbering the section as subsection (1) ofthe section; and

(b) inserting next after subsection (1), as renumbered, the following as subsection (2)­

" (2) Any party may refer matters that were not settled through mediation to the TribunaL".

13. The principal Act is amended by inserting next after section 44, the following as sections 44A, 44B, 44C, 44D, 44E, 44F and 44G­

"Establish­ 44A.-(1) There shall be established for the mentor purposes of this Act a body to be called the Tribunal.

Consumer Protection Tribunal.

Thin! (2) The provisions ofthe Third Schedule Schedule. shall have effect as to the constitution ofthe Tribunal

and otherwise in relation thereto.

Functions of 44B.-(I) The Tribunal shall hear and determine Tribunal. matters referred to it pursuant to section 44 and for

that purpose molY exercise the functions set out in subsections (2) and (3).

(2) The Tribunal may­

(a) call and examine witnesses;

(b) call for the production of, and examine documents and articles;

The Consumer Protection (Amendment) Act, 2012 [No. ] 7

(c) require that any document or article submitted to the Commission be verified by affidavit;

(d) make orders­

(i) declaring certain transactions to be in breach of the provisions ofthis Act;

(ii) prohibiting the withholding of supplies or the threat thereof;

(iii) suspending or modifYing any terms or conditions in an

. agreement which are mani­ festly unfair to the consumer or are in contravention ofthis Act;

(iv) prohibiting the attachment of any extraneous conditions to any transaction;

(v) requiring the publication ofa price list;

(vi) requiring the payment of refund and interest where appropriate;

(vii) requiring the delivery of goods and services;

(viii) at the request of a party, to protect the confidentiality of that party's trade secrets or otherconfidential information; and

(ix) in relation to any other matter or measures as it deems appropriate or necessary in order to further the objects of this Act.

8 [No.] The Consumer Protection (Amendment) Act, 2012

Failure to comply with a summons.

Failure to answer questions.

. False or misleading evidence.

(3) In all proceedings, any paper, book, record or other document produced to the Tribunal pursuant to this section, shall be received as primafacie evidence ofthe truth of the statements contained therein.

44C. Any person who has been served with a summons­

(a) to appear as a witness before the Tribunal; or

(b) to produce a document or article,

and who, without reasonable excuse, fails to comply with the summons, commits an offence and is liable on summary conviction in a Resident Magistrate's Court to a fine not exceeding five hundred thousand dollars or to imprisonment for a term not exceeding six months or to both such fine and imprisonment.

44D. Any person who appears as a witness before the Tribunal and who, without reasonable excuse, refuses or fails to answer a question that he is required to answer by the presiding member at the proceeding, commits an offence and is liable on summary conviction in a Resident Magistrate's Court to a fine not exceeding two million dollars or to imprisonment for a term not exceeding two years or to both such fine and imprisonment.

44E. Any person who appears as a witness before the Tribunal and gives evidence that, to his knowledge, is false or misleading commits an offence and is liable on summary conviction in a Resident Magistrate's Court to a fine not exceeding two million dollars or to imprisonment for a term not exceeding two years or to both such fine and imprisonment.

The Consumer Protection (Amendment) Act, 2012 [No. ] 9

Contempt of 44F. Any person who does any act or thing Tribunal. that would, ifthe Tribunal were a court ofrecord,

constitute a contempt of the court, commits an offence and is liable on summary conviction in a Resident Magistrate's Court to a fine not exceeding two million dollars or to imprisonment for a term not exceeding two years or to both such fine and imprisonment.

Failure to 440. Any person who fails to comply with an comply With order ofthe Tribunal, commits an offence and isan Order of the Tribunal. liable on summary conviction before a Resident

Magistrate to a fine not exceeding two million dollars or to imprisonment for a term not exceeding two years or to both such fine and imprisonment.".

14. Section 48 of the principal Act is amended by- Amendment ofsection 4& ofprmclpal(a) renumbering subsections (2) and (3) as subsections (3) Act.

and (4); and

(b) inserting the following as subsection (2)­

" (2) Subject to subsection (1), service providers

offering a single transaction shall be exempt from the requirement ofregistration.".

10 [No. ] The Consumer Protection (Amendment) Act. 2012

Insertion of 15. The principal Act is amended by inserting next after the new Third Schedule in Second Schedule the following as the Third Schedule- principal Act. .,

THIRD SCHEDULE (Section 44A)

Consumer Protection Tribunal

Appointment I.'-( I ) The Consumer Protection Tribunal shall ofmembers. consist of not less than three and not more than seven

members appointed by the Minister in accordance with sub· paragraph (2).

(2) Members ofthe Tribunal shall be selected from among persons appearing to the Minister to be suitably qualified, knowledgeable and experienced in matters relating to-­

(a) law;

(b) economics;

(c) consumer affairs;

(d) telecommunications;

(e) information technology;

(f) business;

(g) accounting; or

(h) public administration.

Qualification 2. No person shall be appointed as a member of the for Tribunal jfthat person- appointment.

(a) is not ordinarily resident in Jamaica;

(b) is certified under section 6 of the Mental Health Act to be suffering from a mental disorder oris otherwise incapacitated by physical or mental illness which would render him incapable of properly fulfilling his functions as a member of the Tribunal;

( c) is an undischarged bankrupt;

(d) is convicted of an offence involving fraud, dishonesty or moral turpitude or is convicted and senten~ed to a term of imprisonment in excess ofsix months in Jamaica or elsewhere;

11The Consumer Protection (Amendment) Act. 2012 [No.

Chainnan and deputy chainnan.

Temporary appointment.

Constitution ofTribunal for exercise of powers.

Ofticeof member not public office.

Publication of membership.

Tenure of office.

(e) has been removed from an office of trust on account of his misconduct or criminal liability: or

(f) is or has been engaged in activities which could reasonably be considered prejudicial to the interests of the Tribunal.

3. The Minister shall appoint a chairman and a deputy chairman from among the members ofthe Tribunal and who shall be persons who possess the qualifications to hold office as a Resident Magistrate.

4. If the chairman or any other member of the Tribunal is absent or unable to act, the Minister may appoint another person to act as chairman or such member.

5.-( I) The chairman, when present shall preside over every sitting of the Tribunal or, in the case of his absence or inability to so preside, the deputy chairman shall preside, or in case of the absence or inability to act of the chairman and deputy chairman, the other members of the Tribunal may elect another member to act temporarily as ch'airman for that sitting.

(2) The decisions of the Tribunal shall be by a majority of votes of the members and, in addition to an original vote, the chairman or other person presiding shall have a casting vote in any case in which the voting is equal.

(3) Subject to sub.paragraph (4), the quorum for a sitting of the Tribunal is three.

(4) For the hearing ofa matter under this Act, the Tribunal may consist of one member sitting alone if the parties to the hearing agree.

6. The office of the chairman or other members of the Tribunal shall not be a public office for the purpose of Chapter V of the Constitution of Jamaica.

7. The names of the members of the Tribunal as first constituted and every change in membership thereof shall be published in the Gazette.

8.-(1) The appointment of every member of the Tribunal shall be evidenced by instrument in writing and shall be for a period not exceeding three years.

12 [No. ] The Consumer Protection (Amendment) Act, 2012

Procedure.

Tribunal may

requlate its proceedings.

Resignation.

Revocation of appointment.

Fillingof vacancy.

Remuneration ofmembers.

(2) Every member ofthe Tribunal shall be eligible

for re-appointment.

9. The Tribunal shall sit at such times as may be

necessary or expedient for the transaction of business and

for the consideration of matters under inquiry and such

sittings shall be held at such places and times and on such

days as the Tribunal may determine.

10. Subject to the provisions of this Schedule, the Tribunal shall have power to regulate its own proceedings.

11.-(1) A member of the Tribunal other than the

chairman may, at any time. resign his office by instrument

in writing addressed to the Minister and transmitted

through the chairman and, from the date of the receipt by

the Minister of such instrument, such member shall cease

to be a member of the Tribunal.

(2) The chairman may, at any time, resign his

office by instrument in writing addressed to the Minister

and such resignation shall take effect on receipt of same

by the Minister.

12. The Minister may, at any time, revoke the

appointment of the chairman or any other member of the

Tribunal.

13. If any vacancy occurs in the membership of the

Tribunal such vacancy shall be filled by the appointment

of another member in the manner in which the previous

member was appointed 'Uld the member so appointed shall,

subject to the provisions of this Schedule hold office for

the remainder ofthe period for which the previous member

was appointed.

14. There shall be paid to the chairman and other

members of the Tribunal such remuneration (whether by

way ofhonorarium, salary or fees) and such aUowances as

the Minister responsible for finance may determine.

The Consumer Protection (Amendment) Act, 20/2 [No. ] 13

Disclosure of 15. A member who is directly or indirectly interested interest.

in any matter which is being dealt with or to be dealt with

by the Tribunal, shall disclose his interest at the first

meeting of the Tribimal concerning the matter; and shall

not take part in any deliberation or decision ofthe Tribunal

with respect to the matter.

Protection of 16. No action, suit, prosecution or other proceeding members.

shaH be brought or instituted personally against any

member of the Tribunal, in respect of an act done bona

fide in pursuance or execution or intended execution of

the provisions of this Act.".

Passed in the Honourable House ofRepresentatives this 16th day ofOctober. 2012 with eight (8) amendments.

MICHAEL A. PEART Speaker.

Passed in the Senate this 7th day of December. 2012 with seven (7) amendments.

NORMAN W. GRANT Acting President.

On the 11 th day ofDecember, 2012 the Honourable House ofRepresentatives agreed to the amendments made by the Senate.

MICHAEL A. PEART Speaker.

This printed impression has been carefully compared by me with the authenticated impression of the foregOing Act, and has been found by me to be a true and correct printed copy ofthe said Act.

Clerk to the Houses of Parliament.