The Art of Complaining. Phil Edmonston

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