Delayed Payment Penalties:

Question:When is a late fee an illegal penalty in Ontario business-to-consumer contracts?

Answer:Caruso Legal Services can help Ontario business owners and consumers assess whether a contract late fee functions as disguised interest and may be unenforceable, including when it effectively calculates beyond the Criminal Code limit in Criminal Code, R.S.C. 1985, c. C-46, s. 347, or when courts view it as interest on overdue credit rather than a genuine disbursement recovery.   A paralegal can review the payment term math, when the fee triggers, and whether any severability clause might preserve the rest of the agreement, and can explain key Ontario Court of Appeal and SCC guidance like Garland v. Consumers’ Gas Co., [1998] 3 S.C.R. 112 and De Wolf v. Bell ExpressVu Inc., 2009 ONCA 644.   If you want a quick legality check and a practical next step for your case, call (289) 271-0488.

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When Is a Late Fee An Illegal Penalty

A business will sometimes use the threat of additional fees as a financial motivator to encourage customers to make timely payments; however, a contract may become unlawful and unenforceable if a contract contains an illegal late fee.  A late fee is illegal, if the amount violates the Criminal Code, R.S.C. 1985, c. C-46, section 347, wherein it is prescribed that charging interest rate beyond a rate of sixty (60%) percent per annum is a criminal act.   A contract prescribing an interest rate that exceeds the sixty (60%) percent is an illegal contract; Garland v. Consumers' Gas Co., [1998] 3 S.C.R. 112; albeit, if the contract contains a severability clause, then such a clause may preserve the complete contract from becoming void.

Note: Please contact Caruso Legal Services by phone at: (289) 271-0488 to discuss any specific questions that you may have.

Although a business may try to disguise interest by labeling an interest charge as a late fee, courts will carefully review whether the late fee is indeed an interest charge as additional monies due from the providing of credit on the balance overdue.  An exception applies if it is shown that the late fee genuinely correlates to the recovery of a disbursement cost incurred in the collection of the debt rather than as an additional fee correlated to the further advancement of the debt; De Wolf v. Bell ExpressVu Inc., 2009 ONCA 644; Garland, supra.

As an example, consider the business that charges a ten 00/00 ($10.00) dollar late fee when a monthly payment of one hundred 00/00 ($100.00) is overdue by seven (7) days.  This late fee actually calculates as a ten (10%) percent additional charge upon the actual amount due.  This ten (10%) percent late fee imposed upon a one week overdue account produces an exorbitant, and unlawful, five hundred twenty (520%) percent annual interest rate.  Note that the fact that this interest appears lower, and actually does calculate lower, over a greater period of time, it is the trigger date that causes the unlawfulness.  While the $10.00 late fee charged on the 7th day is unlawful, it might appear that if six months later the same $10.00 is still outstanding that the amount, by then, is a lawful twenty (20%) percent interest; however, the very fact that the amount was unlawful when originally imposed continues to make the amount unlawful.  What was at first unlawful fails to become lawful.

Conclusion

When an agreement contains a clause for late fees or other form of delayed payment penalty, such is viewed as an attempt to charge interest on monies due.  Where the late fees, as a disguised interest, calculate to an interest rate beyond the legally allowable interest rate, the late fees are viewed as unlawful.  Furthermore, even if the interest rate may be legal, late fees or a payment penalty that goes beyond the costs of recovering the genuine amount due are, generally, deemed unenforceable.