Vass Bednar: Ontario’s sly approach to consumer protection isn’t doing us any favours

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All I want to know as a consumer is that the government has my back when something goes wrong. Like when an airline loses my bag or doesn’t compensate me for a massive delay, or when Ticketmaster charges me weird fees on my concert tickets, or when VIA Rail breaks down and runs out of food and water. The usual.

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In theory, that’s why we have consumer protection legislation — it’s a backstop that introduces and ensures important accountabilities between businesses and consumers. But lately it seems to barely be working.

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In an acknowledgment of the existing law’s deficits, the Ontario government is considering how to improve the Consumer Protection Act, which was last updated in 2002. This work initially started in 2019, and was delayed by the competing policy priorities of the pandemic. Their updated paper acknowledges this, builds from past stakeholder conversations, and offers a narrow window for comments that borders on the comical (four weeks).

When the government is spending our money, there are press releases, ribbons to cut and smiling people clapping in the background. But this important consultation paper was buried on a forgotten website that looks like it was last updated in 2003. Why not hide the document at the top of a volcano and ask consumers to solve a few riddles before accessing it?

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Consumers are navigating through new hoops on a daily basis in the digital economy, a constant reminder that our existing laws are a sort of cruel joke. Rushing another opportunity to hear more from everyday people about how public policy could improve that experience feels totally incongruent with the core ethos of consumer protection. The process for feedback here lacks imagination and is incremental. Why not actually try to hear from more people?

Last year, the Competition Bureau explicitly made drip pricing — the act of incrementally adding fees, taxes, or charges on top of an initially advertised price — illegal. This change at the federal level helps consumers avoid false or misleading advertising when they shop. The province might want to follow suit and facilitate more transparent pricing in all kinds of marketplaces.

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That is not to say Ontario’s proposals aren’t promising. For one, new potential protections to facilitate straightforward unsubscription from recurring payment agreements are admirable and overdue. Indeed, many of these proposals should be recognized as a form of policy leadership. But there remains a laundry list of missed opportunities destined to be lost to a jurisdictional wormhole.

Take “junk fees,” for example. The federal Minister of Finance’s mandate letter makes reviewing bank and interchange fees a priority. These fall into the “junk fee” category, which featured prominently in United States President Joe Biden’s recent State of the Union address. The U.S. has doubled down on its commitment to reduce overdraft, credit card, hotel resort, cable and internet switching, concert and airline fees. Perhaps Ontario could follow the U.S.’s example and take the lead on pursuing true pricing transparency.

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Shoppers are suffering from a severe lack of transparency. That’s evident in algorithmic pricing and associated discrimination; undetectable self-preferencing, private label products that create an illusion of more competition than actually exists; fake reviews that prompt purchases and more. Consumer protection is a vehicle to mitigate such information asymmetries between providers and consumers.

Ontario’s paper starts to acknowledge this when it examines the province’s ability to “enforce consolidated contract disclosure rules in an online context for people.” This could be helpful as people seek bargains by navigating peer marketplaces such as Craigslist, eBay or Facebook Marketplace where individuals may be more vulnerable to fraud and scams (beyond inaccurate statements of the condition of goods for sale, which could be covered by the proposed amendments).

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Given the concurrent open and ongoing federal consultation on the Future of Competition Policy in Canada, rushing a review of consumer protection legislation without considering the potential of more complementarity with competition law is a missed opportunity.

Current protections for consumers subject to unfair digital business practices are weak. In this inflationary period, where Canadians are more price conscious than ever before, it would be productive ask them more about the pain points and uncertainties they are experiencing. Policy people should be focused on building a digital economy that includes and serves everyone as they seek to level the playing field between consumers and digital service providers in novel and important ways.

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For whatever reason, Canada has an embarrassingly weak culture of consumer protection and impotent organizations that under-represent us. This means that everyday people need to take a do-it-yourself approach to this regulatory opportunity, which is not unlike the current work involved in the basics of online shopping.

As it stands, the existing legislation often leaves people in a lurch, and a rushed and limited consultation window doesn’t do us any favours. I crave something more substantive than the assurance that the “ministry is looking to make the new CPA responsive to emerging issues and new challenges … (and) also wants your input to identify any improvements.” Perhaps alongside the daily non-stop burden of being a digital citizen, I’m just exhausted by and resentful of the request to do the government’s homework for them. Is there a way to be protected from that, too?

People in Ontario (and Canada!) need to feel confident that the game has some rules when consumption goes sour. In the pursuit of a better law, the province appears to be sneaking in a few overdue changes behind our backs. We can do better.

Vass Bednar is an adjunct professor of political science at McMaster University and executive director of the school’s Master of Public Policy in Digital Society program.