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How to issue a complaint against your Canadian bank

by with No Comment COVID-19Legal Updates

Many Canadians are facing financial uncertainty as a result of the COVID-19 pandemic, which can lead to issues arising between banks and their customers. Many banks have taken measures to accommodate individuals and businesses in these challenging times by creating special programs, some of which are outlined here.

Despite measures being taken by banks, individuals and businesses may still receive unwelcome news including penalties, charges, or account closures. If you believe your bank may be acting unfairly, there is a federally regulated complaints-handling process that allows consumers to initiate, and if needed escalate, complaints to an independent third-party. While the escalation process will vary from bank to bank, the following basic steps remain the same.

Start by communicating your concerns directly to your bank

It is best to start the complaint process by contacting a representative of your bank, either at your branch or through your bank’s call centre or website, to see if they can resolve your issue. In advance of this call be sure to write down your problem in detail, and gather all supporting documentation so that you can clearly communicate your issue to the bank’s representative. It may take time to get ahold of a representative and you don’t want to forget to include any important details.

If you are not happy with the resolution the representative offers, ask them to provide a written response via email or letter mail setting out the details of your complaint, the bank’s proposed resolution, and an explanation for the proposed resolution.

Escalate to your bank’s customer complaints department

The next step is to escalate your complaint to your bank’s complaint-handling department. You may ask the representative you have been dealing with how to contact this department. If, after talking to the complaint handling department, you are still not satisfied with the resolution proposed by your bank, again ask for a detailed written response from the complaint-handling department.

If you have received an unsatisfactory offer for a resolution to your matter within 90 days, you may go to the next step outlined below and contact your bank’s Ombuds office. However, if it has been ninety days or more since you initially contacted the complaint-handling department, you should proceed directly to an external complaints body.

A good time to seek legal guidance

If you are at the stage of either contacting the Ombuds office or an external complaints body, you may wish at this time to contact a knowledgeable lawyer to ensure that you know your legal rights, and how to protect them.

Contact your bank’s Ombuds Office

Federal guidelines dictate that banks have an independent senior officer responsible for consumer complaints, separate from the rest of the bank’s complaint-handling procedures. Most banks have an Ombudsperson or Ombuds Office that fulfills this role.

The Ombuds Office must provide you with its final decision/offer, including appropriate details and explanations regarding how the final decision was reached. Your bank should also provide information about their external complaints body, in case the Ombuds office is not able to satisfactorily resolve your issue.

Escalate to your bank’s external complaints body

If you are not satisfied with the Ombuds Office’s final decision/offer, the final step is to contact your bank’s external complaints body (ECB). ECBs are independent entities that are required by federal regulation to provide free and impartial reviews of complaints. The ECB must make a final written recommendation to you and the bank within 120 days after receiving all the information needed to deal with the complaint.

If you have any questions or require guidance regarding a complaint against your bank, we encourage you to contact Watson Goepel’s Litigation & Dispute Resolution Group.

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Navigating contractual disputes during COVID-19

by with No Comment COVID-19Legal Updates

The spread of COVID-19 is having an unprecedented impact on our society. This impact will be felt for months and years to come. In light of the current circumstances, many businesses, organizations, and individuals are struggling to meet their obligations and are looking for guidance on how they can resolve any resulting business and contractual disputes.

The presumption is that parties are to be held to their contractual agreements. However, express contractual provisions and common law doctrines may provide relief from contractual performance in specific circumstances.

Force Majeure

One source of relief may come from a force majeure clause that is included in a contract between the parties.

The general purpose of a force majeure clause is to give the contracting parties protection when they are unable to perform their obligations due to events that are beyond their control. Or, put another way, events are outside the inherent risk in conducting business.

While this may suggest that a party is entitled to relief under a force majeure clause based on the COVID-19 pandemic, as this pandemic is unexpected and unprecedented in modern society, contractually, this may not be the case.

Force majeure clauses are drafted to contain triggering events, which allow parties to seek relief under such a clause on the occurrence of a listed event. However, COVID-19, or the effects of COVID-19, may not qualify as a triggering event under a force majeure clause. What is or is not a triggering event will depend on how the clause in the contract is drafted.

Further, in order for a party to be entitled to relief on the occurrence of a triggering event, the event must cause the party seeking to rely on the clause to be unable to perform their contractual obligations. If a triggering event simply makes performing an obligation more expensive or more difficult, this may not be a significant enough effect to entitle that party to relief under the force majeure clause.

Even if a party is prevented from meeting their contractual obligations due to the occurrence of a triggering event, the relief they are entitled to can also vary based on the how the force majeure clause is drafted. A party may be completely released from their obligations under the contract, or they may be entitled to some lesser relief, like a rent abatement in the context of commercial leasing.

Finally, contracting parties should be aware of their obligation to mitigate. Mitigation requires parties take reasonable steps to avoid loss and damage. This may require some sort of partial performance by the parties, as the law will not compensate a party for harm that could have been avoided by taking reasonable steps. However, as COVID-19 is a new and quickly developing situation, the answer to what is “reasonable” in the context of the COVID-19 pandemic is still evolving.

Whether or not a force majeure clause creates an entitlement to relief depends almost entirely on how the force majeure clause is drafted, and some contracts will not contain a force majeure clause at all.

Frustration

In contracts where there is no force majeure clause, or in cases where the force majeure clause is not applicable, the common law doctrine of frustration may provide relief in narrow circumstances.

Frustration of a contract occurs when, without the fault of either party, circumstances arise which cause the performance of the contract to become impossible or “radically different” than the original bargain.

However, there are a number of exceptions to the doctrine of frustration. For example, a contract is not frustrated when the circumstances are temporary or when the contract simply becomes more costly or onerous to perform.

Whether a contract is frustrated is dependent on the facts of each case. Further, if a contract is frustrated, the actual outcome and remedies for the parties depend on a number of different factors.

As is the case in the context of force majeure, parties should keep in mind their duty to mitigate.

Fairness

Businesses, organizations, and individuals should also keep in mind that all parties to a contract must perform their contractual obligations honestly and reasonably. When encountering contractual disputes arising due to this pandemic, parties should carefully consider this duty and their planned course of conduct.

Conclusion

The concepts of force majeure, frustration, fairness, and mitigation are complex and heavily dependent on the facts at play. Even if a contract contains a force majeure clause, it may not create an entitlement to relief under such a clause in the current circumstances. This will depend on how the force majeure clause is drafted and the facts of each case. If there is no force majeure clause in a contract, or if it does not apply in the context of COVID-19, a party may, in narrow circumstances, be entitled to relief under the common law concept of frustration.

Parties should also review the entire contract to understand their rights, obligations, and remedies. For example, parties should consider any clauses relating to termination, delay, and the consequences of a default under the contract. If you are experiencing issues or disputes related to contractual performance,  contact legal counsel for assistance.