Monday, July 15, 2024
Cars and computers are just two of the consumer products caught up in the "right to repair" debate. Photo: Taxi News
Democracy & GovernmentNews

Ontario (might get the) Right to Repair

An overview of Bill 187 the Right to Repair Consumer Electronic Products, Household Appliances, Wheelchairs, Motor Vehicles and Farming Heavy Equipment Act, 2024

McMillan LLP – Lindsay LorimerRachel CooperStevie O’BrienTimothy Cullen and Adelaide Egan

The Ontario legislature has taken the first step to pass provincial “right to repair” legislation for consumer products and motor vehicles. If this non-government bill becomes law, it would empower consumers and repair businesses to make their own repairs to:

  • Consumer electronic products
  • Products with electronic components
  • Wheelchairs
  • Household appliances for
    • Cooking
    • Cleaning
    • Food preservation and preparation
    • Personal hygiene
    • Home maintenance
    • Household tools
  • Motor vehicles,[1] including
    • Automobiles
    • Motorcycles
    • Motor assisted bicycles
    • Off-road vehicles, except those designed for snow
  • Farming heavy equipment.

Requirements of Bill-187 the Right to Repair Consumer Electronic Products, Household Appliances, Wheelchairs, Motor Vehicles and Farming Heavy Equipment Act, 2024 (“Bill 187”).

The breadth of the proposed Bill 187 is staggering, and if passed will have impacts for a broad range of manufacturers across many industries. Bill 187 would amend the Ontario Consumer Protection Act and oblige manufacturers to provide the most recent versions of:

  • their repair manual;
  • replacement parts;
  • software and tools

to allow consumers and businesses to diagnose, maintain, repair, or reset electronic settings.[2]

The above must be provided at no cost to the consumer, or if a printed manual is requested it must be provided at a reasonable fee.[3] All parts, software, and tools that a consumer would require to diagnose, maintain, or repair their product must be provided at a “reasonable fee”, meaning:

  1. The same fee must be charged to consumers, repair businesses or any other person; and
  2. The net profit percentage of the charged fee cannot exceed a reasonable estimate of the net profit percentage that the manufacturer earns for diagnostic, maintenance or repair services.[4]

Goals of Bill187 and how likely it is to pass into law

Bill 187 is a private member’s bill introduced by the official opposition. It is rare that any bill is voted down at first reading in Ontario; the real test will be whether the proposed legislation dies at committee or fails to advance to a second vote. As the Progressive Conservative Party holds a majority of seats, it unlikely that they will support an opposition bill. In recent history, private member’s bills in Ontario have only a 10-12% success rate of becoming law.[5]

In Ontario, much of the public discourse on right to repair legislation has focused on the needs of farmers in remote areas far from repair dealers. There is growing recognition that this group requires technical information and parts to repair their equipment in an industry that is time sensitive for planting and harvesting.[6] If public opinion favours right to repair legislation, it is more likely that the government will introduce their own legislation than support Bill 187.

Public pressure from the farming community is one of the reasons the federal government is launching its own consultations on a right to repair framework this June, with an expectation that a government backed bill may be introduced this fall. Announced in Budget 2024 under the heading “Lower Costs and Fairer Treatment for Farmers”, the federal consultations will focus on durability, reparability, and interoperability.

It is possible manufacturers may have additional obligations at the federal and provincial level by the end of this year.

Unqualified repairs and safety risks for consumers

Many questions remain for manufacturers regarding the safety risks surrounding right to repair legislation. One of the main concerns is that repairs will be carried out by unqualified individuals, either consumers who attempt repairs themselves or repair shops that carry-out repairs on products for which they are not qualified. Unqualified repairs may lead to further damage to the products and an increased risk of safety hazards if repairs are not properly carried out.

One related concern is that repairs may be performed with non-genuine or counterfeit parts. Many replacement parts sold online can either be counterfeit or replacement parts that do not meet the same safety standards of the original product. Low-quality replacement products, especially for products such as batteries, may lead to an increased risk of fire.

Disclosure of Confidential Business Information

As motor vehicles and consumer products become more technologically advanced, the Bill 187 right-to-repair legislation would require manufacturers to disclose sensitive business information. The obligation for manufacturers to provide their most recent tools and software may require revealing details about software systems, proprietary algorithms, or specialized diagnostic tools. The current form of the Bill-187 contains no protections or exemptions for protected intellectual property.

Penalties for non-compliance

While there are no specific penalties for non-compliance with the right to repair provisions, if the Bill becomes law, the penalties in the Ontario Consumer Protection Act will apply to any contraventions of the right to repair legislation. For a corporation, the maximum fine under the Consumer Protection Act is $250,000.[7]

Conclusion

As Bill 187 progresses through the Ontario Legislature, companies with products in the Ontario market would be well-advised to stay apprised of developments. McMillan will continue to monitor the progress of right to repair legislation in Ontario and, together with its public affairs arm, McMillan Vantage, is here to help companies and industry associations advocate for their interests on this important issue. For more information, please contact any of the authors of this bulletin.

For companies interested in right to repair legislation, McMillan is also monitoring a similar bill that was introduced in Quebec. For more information on Quebec’s proposed right to repair legislation consult our McMillan publications:

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