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WHY

COMPLAIN?

Is Anyone Trustworthy?

Apparently, Dr. Mehmet Oz isn’t — or so says the Healthy Weight Network and the National Council Against Health Fraud (www.healthyweight.net/fraud1.html):

In the category of Worst Claim, our 2012 Slim Chance Award goes to Dr. Mehmet Oz who touted raspberry ketone on The Dr. Oz Show as “the number one miracle in a bottle to burn your fat.” Dr. Oz claimed the product regulates the hormone adiponectin so fat in cells is “broken up” more effectively to enable “fat burning.” He declared that the product will help teach the body that it’s thin. But the only relevant research cited was conducted on lab rats and mammalian cell cultures rather than clinical research on people. By the end of the show’s program segment on raspberry ketone, Dr. Oz shifted into disclaimer mode arguing for the need for good diet and exercise. He then contradicted his opening miracle mongering by suggesting raspberry ketone will only “get you over the hump” and “is not a miracle pill.”

But let’s face it: Dr. Oz has become one of the bright stars in today’s television self-help culture. And so, despite the disclaimer at the end of the segment and the critical assessments illustrated here, many consumers will have simply stopped listening after having heard Dr. Oz describe raspberry ketone as a “miracle in a bottle.”

The good news, though, is that times are changing. Governments and the courts are becoming more responsive to consumer issues, and small claims courts are allowing claims for as much as $30,000.

On February 12, 2012, Canada’s Supreme Court endorsed Quebec’s “seller-beware” mindset in its precedent-setting judgment relating to false and misleading representations under the province’s Consumer Protection Act. In Richard v. Time Inc. (scc.lexum.org/decisia-scc-csc/scc-csc/scc-csc/en/7994/1/document.do) the court held that:

 a representation should be judged simply by what a credulous and inexperienced consumer would believe to be true — a position long held by the courts in matters relating to misleading advertising charges filed under the federal Competition Act; and,

 if a prohibited business practice exists, there is no need to prove actual damages; an irrefutable presumption of prejudice exists (which opens the door to punitive damages, even where the circumstances do not justify a compensatory award).

Although punitive, or exemplary damages, can go as high as $1 million (see page 112: Whiten vs. Pilot), Time magazine was ordered to pay only $15,000. The impact of this award, however, has been far greater than the amount: it puts businesses and governments on notice — there’s a new sheriff in town and things are going to be different.

How Do You Know When to Complain?

First, let me be clear: there are times when you should not complain. Contrary to the popular adage, the customer is not always right. Sure, we have all been spoiled by retailers who will take back a shirt or dress, no questions asked. But that is just good public relations. We don’t have the right to a refund or exchange credit if we change our mind, paid too much, or can’t find financing for the purchase. Actually, if the sale is cancelled because it can’t be financed, the seller is entitled to charge a penalty to cover reasonable expenses caused by the lost sale — this is why contracts should spell out the costs that will result if they are broken.

Nonetheless, there are many times — particularly if you are faced with a defective product or an unsatisfactory service — when you should complain. I recommend that you claim a full or partial refund (damages) if any of the following allegations can be substantiated:

 The product is unsafe or defective; service is unsafe, inadequate, or incomplete — This principle holds true even if the product was sold “as is” or “without warranty” if the buyer can prove the seller’s bad faith.

 There has been false representation or misinformation — This applies when an important characteristic of the product or service was not as represented (cost, size, warranty, performance, etc.), or important facts were not disclosed (vehicle had accident repairs, home was formerly used as a bordello, or trip insurance doesn’t cover prior ailments).

 The product or service does not meet the client’s needs as expressed in the contract or promised in the sales representation — For example, a no-smoking room should be just that; gluten-free meals must be gluten-free.

 The warranty has been breached — This comes into play when the guarantee wasn’t honoured or differs in its application from what was promised. Since the warranty is considered to be an integral part of the contract, when it is breached (not honoured), a full or partial refund and punitive damages can be claimed from the seller, warranty company, or manufacturer. Prudent plaintiffs usually hold all parties equally responsible and let the presiding judge decide how to apportion blame.

 Consumer-protection law is violated — Even if the seller is contravening only a technical requirement of the law, like not giving the buyer a copy of the contract, the contract can be cancelled. In some used car cases, buyers who had paid too much were able to get their money refunded because the mileage written on the contract was incorrect or the warranty wasn’t clearly stated. Judges take a dim view of standard-form contracts that aren’t in conformity with the law. In fact, many consumer-protection laws require that the judge give the consumer the edge when deciding responsibility.

 The product or service doesn’t last for a reasonable period of time — A judge has the final say as to what is a reasonable period of time; the court’s decision prevails over the contract’s guarantee. This rule applies to all products and services, from car repairs to tummy tucks.

 Delivery is delayed or the price is boosted — The seller must respect the delivery date and price given verbally or written on the contract. If there is no promised delivery date, the court will decide what is a reasonable wait based upon the industry norm.

 Parts availability or after-sales servicing is inadequate — There is no legal requirement that manufacturers provide parts and service beyond the warranty period. However, judges can refund part of the purchase price and award damages, even if the warranty has expired, if a product’s reliability or durability is reduced due to poor servicing or an inadequate supply of replacement parts.

 A “fix” doesn’t fix the problem — When the seller’s corrective warranty repairs don’t fix the problem indicated on the work order after repeated customer visits, the seller and/or manufacturer should either replace the product or pay for repairs elsewhere. If the warranty period runs out during repeated repairs, coverage for the uncorrected problem must continue until it is fixed.

 A secret “goodwill” warranty extension isn’t honoured — Carmakers and computer manufacturers often extend their warranties long after the original warranty has expired. A problem occurs when the company applies the longer warranty in the United States only, or restricts its extension to specific regions. For example, Firestone/Bridgestone tried to limit its tire warranty extension to cars registered only in hot-weather states, until the courts showed this was impractical because cars registered elsewhere could have a catastrophic tire failure when driving through a warmer region, or after having moved to the warmer state. Incidentally, carmakers still routinely restrict their post-warranty free repairs. Fortunately, in Canada, showing a service bulletin (like the ones shown below) will usually get the free repair. (See a comprehensive listing of current secret warranty extensions in the 2014–15 Lemon-Aid New and Used Cars and Trucks guide.)

Toyota’s secret warranty provides a valuable 15-year durability benchmark of what manufacturers should do with rust-cankered vehicles. This example should be used in negotiations with any automaker where body defects are involved.

Again, use this secret warranty to get a free catalytic converter replacement (it fits on the exhaust and costs about $600). Longevity is usually five years.

You CAN Win: The Personal Benefits of Complaining

The power to make yourself heard or to right a wrong isn’t something you are given. You take power from deep within your soul. Self-doubt, fear, and modesty disappear proportionally to how angry you become. There isn’t a sudden transformation from “meek, mild-mannered reporter” — it happens incrementally, over a relatively short time as indifference and lies corrode your patience and anger swells up and replaces tolerance.

Oh, the joy I have known seeing this process at work! Angry customers (soccer moms and college professors, urban and rural residents, anglophones and francophones) coming together to create their own pressure groups — the “Rusty Ford Owners Association,” the “Ford Lemon Owners Group” (FLOG), the “Chrysler Lemon Owners Group” (CLOG). And then, going out to picket while holding serial press conferences, and ending up winning million-dollar settlements, all in a short span of time.

It all follows the same wonderfully effective route: communication, organization, information sharing, litigation, and legislation. Previously meek, modest, and relatively passive customers complain about a product, form a pressure group, and participate in public hearings. Strong consumer protection laws, pro-consumer court rulings, regulatory agencies (both private and public), and sustained media interest keep the issue alive.

Does this process work? You bet it does. Not only will the problem get settled, but those consumers who once felt powerless become powerful. They become advocates for justice and go on to fight for other changes. Consider the following examples:

Success Story

Serge Pelletier knew in his gut something was wrong. He saw that his new 1973 Nissan 510 didn’t have as many features as other 1973 510s. He filed suit in small claims court and won a $300 refund after Nissan admitted the cars were originally leftover 1972 models that had been “re-dated” as ’73 versions.

The company claimed the auto industry (especially importers) had been rebranding leftovers for decades, and no one had complained. Automobile Protection Association lawyers countered that the cars were originally meant to be sold as 1972 models and didn’t have the safety features that were found with “real” 1973 510s.

Nissan appealed the award to the Supreme Court of Canada. It argued that small claims courts were unconstitutional because lawyers were barred from pleading for corporations, the courts lacked jurisdiction because the proper remedy was a cancellation of the sale, and the plaintiffs didn’t suffer any real damages. The Court rejected all these arguments and confirmed the $300 judgment (Nissan v. Pelletier, scc.lexum.org/decisia-scc-csc/scc-csc/scc-csc/en/item/5539/index.do).

The Pelletier judgment effectively shut down an industry-wide scam that had generated millions of dollars in profits from leftover cars and trucks. The appeal also confirmed the constitutionality of Quebec’s small claims court system, making it impossible for other defendants to escape its jurisdiction.

Success Story

Eric Topol is an American cardiologist and geneticist who got a dangerous drug off the market and lost his job at the Cleveland Clinic in the process.

Topol was the first physician researcher to raise questions about the cardiovascular safety of Merck’s Vioxx (rofecoxib), an anti-inflammatory drug used to treat osteoarthritis and acute pain. Following Topol’s criticism, the drug was voluntarily withdrawn from the market in 1994 because of concerns about the increased risk of heart attack and stroke.

It was later proven that Merck withheld information about the cardiovascular risk from doctors and patients for over five years, resulting in between 88,000 and 140,000 cases of serious heart disease. Merck had sales revenue of US$2.5 billion from Vioxx during its last year on the market.

Success Story

Another physician known as “the guinea-pig doctor” kept his job, but made himself sick to prove the medical establishment and pharmaceutical industry wrong about the cause of stomach and intestinal ulcers.

Barry Marshall, an Australian internist and medical researcher, was so sure conventional medical wisdom was wrong about the cause of stomach ulcers that he swallowed a broth of Helicobacter pylori bacteria to prove his point. Sure enough, the brew gave him an ulcer that a regimen of antibiotics quickly and inexpensively cured.

Both Marshall and Dr. Robin Warren, a pathologist who also saw the connection between H. pylori and ulcers, had previously been dismissed worldwide as quacks by medical specialists and drug companies. After all, medical schools taught that ulcers were caused by stress and lifestyle and were best treated by drugs blocking acid production. In one bizarre study they cited, scientists gave rats ulcers by putting them in straitjackets and dropping them in ice water. Antacids were given to prevent the rats’ ulcers. Based on this study, conventional treatment of patients became a lifelong diet of antacids like Tagamet and Zantac (a $3-billion-dollar industry) or removal of the stomach. Today, ulcers are easily cured with a short-term course of drugs and antibiotics, and stomach cancer, also linked to H. pylori gastritis, has been practically eradicated in the Western world.

Twenty years after their discovery was published, both doctors received the 2005 Nobel Prize for medicine.

Success Story

Manitoba firefighter Rick Stoyko was never much of a complainer, but he needed medical help for himself and his colleagues.

He met Becky Barrett while she was going door-to-door campaigning for the provincial NDP. Stoyko had been diagnosed with brain cancer in January of 2002 and wanted Barrett’s help in having cancer recognized as a work-related illness for provincial firefighters. He showed her studies of Canadian firefighters that found they were three times more likely to contract brain, bladder, and kidney cancers, as well as non-Hodgkin’s lymphoma and leukemia. She agreed to take up the firefighters’ cause.

Barrett won her seat and was appointed minister of labour. Shortly thereafter, she introduced Bill 5, a law making firefighters automatically eligible for workers’ compensation benefits for different forms of cancer, retroactive to 1992. The law created the presumption that a firefighter’s cancer was work-related. Under the new law, employers wishing to appeal had the burden of proof that the cancer was not work-related.

In a surprise move, the opposition Conservatives applauded the legislation, and Manitoba became the first Canadian jurisdiction with full presumptive cancer legislation. The list of cancers now presumed to be work-related injuries for full-time, part-time, or volunteer firefighters, as well as fire investigators and trainers, include breast cancer (a first in Canada), multiple myeloma, primary site prostate, and skin cancers. This brings to fourteen the number of cancers covered by presumptive legislation. The other cancers currently covered include: brain, kidney, lung, ureter, colorectal, esophageal and testicular cancers, non-Hodgkin’s lymphoma, and leukemia.

Stoyko brought the media to tears during one press conference where he spoke of his love for the profession and how he hoped in his next life “to again have the honour of being a firefighter.” Rick died almost ten months after the legislation was adopted. He was only fifty years old.

The health protection law for Canada’s firefighters that Rick Stoyko and Labour Minister Barrett successfully championed in the Manitoba legislature has steamrolled around the world, as the following excerpt from Australia’s September 2, 2011 Senate Hansard clearly shows. The Senate was considering a health protection bill for Australian firefighters and invited Alex Forrest, president of the United Fire Fighters of Winnipeg and Canada’s representative for the International Association of Firefighters, to speak:

It has been a great honour to be here. I would like to dedicate the work that I have done here to a firefighter from Manitoba. He was the first firefighter to be covered by occupational cancer in all of Canada. His name was Rick Stoyko. I know his family will be happy to hear that dedication. I have also reviewed the previous Hansard from all the people. I believe that the evidence is clear. I am not going to go into anything more because I think the position has been clear that there is a link between cancer and occupational firefighting. You have the great responsibility of putting this forward and I really look forward to the report. I also look forward to the time that I come back here and see that this legislation is passed. I want to thank each and every one of you for putting your time into this. I know politics is a thankless job sometimes, but the work that you are doing here is going to have far-reaching effect for not only Australian firefighters but around the world. I know because I am working in places such as Sweden, Finland, Israel and the UK and they are watching what is happening here in Australia right now.

The Australian bill was passed.

Success Story

Beckie Williams combined the use of social media and a sense of humour to end U.K. retail giant Marks & Spencer’s practice of adding a $10 surcharge to brassieres sized DD and up. Her campaign created a Facebook group called Busts 4 Justice in 2008. A year later, with over 18,000 members, the group forced M&S to adopt a one-price-fits-all policy. Since then, a number of independent websites have sprung up rating brassieres and retailers’ practices (see busts4justice.com/about-busts4justice/ and www.investinyourchest.co.uk/ratings-guide).

Success Story

Marie Valée was a mom and a journalist for Le Jour, living in Quebec, when she became fed up with TV commercials directed at her children that pushed cereals, games, and other products. Her polite entreaties with advertisers got nowhere, so she wrote a few articles and ratcheted up the pressure. Valée founded a group of several hundred Quebecers called “Le Mouvement pour l’Abolition de la Publicité Destinée aux Enfants” and carried out a media campaign that culminated in hearings in the Quebec National Assembly and the adoption of strong laws that led to the abolition of advertising directed at children throughout Canada.

Success Story

Mario Girolami is a volunteer driver who parked his truck in downtown Calgary on May 19, 2011, to deliver aid for Slave Lake fire victims. His engine was running, and he had the emergency lights on for the few moments it took to unload bedding and other items. As he was pulling away, a Calgary Parking Authority agent handed him a $315 parking ticket. Girolami called the Calgary Sun, showed where he had been parked, and handed out copies of the ticket. The Sun’s “Page Five” picked it up. The upshot? The next day the ticket was cancelled, and the two Parking Authority bosses responsible were fired over their actions.

Success Story

Georges Zeliotis was a seventy-three-year old Quebec retiree who needed several hip operations and was placed on a hospital waiting list for treatment. After a year-long wait Zeliotis asked if he could pay to have hip surgery through a private health care facility and if he could buy private health care insurance. The Quebec government answered with a resounding non!

Zeliotis found Dr. Jacques Chaoulli, a Quebec physician who provided medical services to many of his patients at their homes. For several years, Chaoulli had been unsuccessful in getting the Quebec government to cover the costs of the home medical treatments he provided and to grant him the right to establish a private, autonomous hospital.

Patient and doctor teamed up and fought the Quebec government’s refusal all the way to the Supreme Court after having their case tossed out by two lower courts. In June 2005, in a four-to-three decision, the Supreme Court ruled in favour of the plaintiffs and against the Quebec Charter of Rights, writing, “Access to a waiting list is not access to health care.”

The successful lawsuit allows patients to be treated privately in Quebec and has opened the door to private clinics throughout Canada. Waiting lists remain but provincial healthcare facilities have to keep the waits reasonably short or pay for treatment elsewhere. Patients seeking payment for private treatment simply have to show that a long wait would unjustly deprive them of their section 7 rights under the Canadian Charter of Rights and Freedoms, which protects “the right to life, liberty and security of the person.”

Yep, complaining works, anywhere — if it’s done the right way.

We ALL Win: The Social Benefits of Complaining

When something goes wrong, we all wonder if we really should complain. After all, we don’t want to be embarrassed or proven wrong in public. Yet, somewhere deep in our soul we know that a defective product or poor service shouldn’t go unheralded. We know silence is complicity, and a failure to act is cowardice. So we complain, and the world is the better for it — or, at least we feel better — for a short while, probably.

According to Professor Bryan Dwyer (insertmarketinghere.com/tag/types-of-complainers), complainers can be grouped into four categories:

 Passives are the least likely to complain to either the organization or to other consumers through word of mouth; they either doubt the effectiveness of complaining, or it goes against personal values and norms.

 Voicers are likely to complain to the organization but not to other consumers; they believe complaining is likely to resolve the problem.

 Irates are more likely to complain to other consumers than to the organization; unlikely to give the provider a second chance, they switch providers and actively spread negative word-of-mouth.

 Activists are the most likely to complain to the organization and to other consumers; they believe all forms of complaining have positive results.

Airing a grievance can have far-reaching consequences. In the eighteenth century, citizens’ complaints over unfair taxation that were ignored by England were a big part of what led to the American Revolution and the birth of the United States.

Sometimes, the failure of government to act upon citizens’ complaints can have far-reaching, unforeseen consequences that may lead to its overthrow by ballot and almost tear a country apart.

Success Story

Former prime minister Brian Mulroney became Canada’s equivalent of King George III in 1992 by turning a deaf ear to protests over his proposals to change the Canadian constitution. His inability to hear the collective grumble of the electorate sank the Charlottetown Accord in a national referendum that year. During the run-up to the vote, Prime Minister Mulroney further alienated the electorate by calling opponents of the accord “enemies of Canada.” Voters complained that they were being bullied by the “political class” and rejected the accord by 54.4 percent.

A majority of voters in seven of the ten provinces (including Quebec) voted against the accord, with only Newfoundland, Prince Edward Island, New Brunswick, and the Northwest Territories voting in favour. Surprisingly, 62 percent of Aboriginals on reserves voted against the Accord as well, despite its proposals for Aboriginal self-government.

Meanwhile, Stephen Harper, a policy wonk for the conservative Reform Party, framed the referendum as the ordinary people of Canada against political “elites.” In the subsequent federal election, Mulroney’s Progressive Conservative Party won only two seats. The PCs were ultimately taken over by the Reform Party, and Harper is now in his third term as Conservative prime minister. In effect, a dissatisfied citizenry staged a bloodless coup — Canadian-style.

A positive consequence of the defeat of the Charlottetown Accord was the trend away from formal constitutional reform and the use of intergovernmental agreements and government legislation, like recognizing “the Québécois” as a “nation within Canada,” giving Quebec veto power over future constitutional amendments, and transferring labour-market training to all provinces.

Since 1992, the phrase constitutional reform has become toxic in most political circles — the enduring legacy of Mr. Mulroney’s bellicosity and Canada’s refusal to buy a tainted product. In effect, Canadian voters did the right thing: they grumbled, and they voted.

Results of the Referendum on the Charlottetown Accord

JURISDICTION	VOTED YES	% YES	VOTED NO	% NO
Newfoundland	133,193	62.9	77,881	36.5
Prince Edward Island	48,687	73.6	17,124	25.9
Nova Scotia	218,618	48.5	230,182	51.1
New Brunswick	234,010	61.3	145,096	38.0
Quebec	1,710,117	42.4	2,232,280	55.4
Ontario	2,410,119	49.8	2,397,665	49.6
Manitoba	198,230	37.8	322,971	61.6
Saskatchewan	203,361	44.5	252,459	55.2
Alberta	483,275	39.7	731,975	60.1
British Columbia	525,188	31.7	1,126,761	68.0
Yukon	5,354	43.4	6,922	56.1
Northwest Territories	14,750	60.6	9,416	38.7
Total Canada	6,185,902	44.6	7,550,732	54.4

In the following chapters, I will help you to understand your rights as a consumer and show you winning strategies for getting a refund, respect — and maybe even revenge.