canada consumer-protection debt
Collection agency trying to collect on parking ticket? (Is this advice accurate?)
<p>I got a ticket from a private parking enforcement company for leaving the lot when I did not leave the lot (the ticket even specifies the place I theoretically went to). I've been trying to fight it complete with proof of doing business on the lot, however the people I emailed have been utter peanuts and apparently sent the ticket to a collection agency.</p>

<p>I found the following advice online.  Is it accurate? Can I just permanently ignore the collection agency about this parking ticket? Legally, what are the potential negatives (besides getting another ticket/getting towed)? My main concern is that it may affect credit score.</p>

<blockquote>
  <p>According to the BUSINESS PRACTICES AND CONSUMER PROTECTION ACT:</p>
  
  <ol start="4">
  <li>A collector must not continue to communicate with a debtor
  
  <ul>
  <li>except in writing, if the debtor</li>
  <li>--has notified the collector to communicate in writing only, and</li>
  <li>--has provided a mailing address at which the debtor may be contacted</li>
  </ul></li>
  </ol>
  
  <p><strong>"Simply send the collections agency a fax stating you wish to be contacted by written correspondence ONLY and state the mailing address at which they can send mail to you. Provide your full name and be sure to clearly note what matter pertains to (i.e. parking ticket for license plate number ABC 123) sign the fax, and record the date you sent it. Keep the fax. You also need to send the same fax to the creditor (i.e. the parking lot company such as Diamond Parking).</strong></p>
  
  <p><strong>If by chance they are calling you about a parking ticket from Diamond Parking, in the same fax, tell them you wish to dispute the ticket and all related charges in court. They wont take you to court because it's your word against theirs, they simply will not win. Even if they tried the cost of pursuing such matters in court far exceeds the sum they can hope to recover.</strong></p>
  
  <p><strong>Lastly, a parking ticket and fine from a private parking lot WILL NOT and CAN NOT affect your credit rating. You did not borrow money from them and not pay it back."</strong></p>
</blockquote>

<p>At this point I'd even be willing to pay the original ticket amount just to have the damn thing dealt with &ndash; how could I go about doing that?</p>

<p>Edit: Bolded the part I'm wondering about.</p>

<p>If you are in the habit of paying people just because they ask you to, then I say you owe me $500 - if you want to pay I'll send you my wire transfer details. This is a facetious way of making a very simple point: <strong>You don't owe people money just because <em>they</em> say you do</strong>.</p>

<p>If someone claims to be owed money by you, the legal onus is for them to prove both their legal entitlement and the amount. Normally, people agree that they owe money and that's enough, however, if the debtor disputes the debt then the creditor has to prove that it is owed: the debtor does not have to prove that it isn't.</p>

<p>Their legal basis must come from either a contract or the tort of trespass. For the former they must prove that a contract exists and that you breached a term of it. For the latter they must prove that you committed the tort. In both cases, they are only entitled to recover their costs (including loss of profit) that your actions caused. As they are not a government they have no right to punish you with a fine: if they are asking for more than damages then this is a penalty and void.</p>

<p>I am unaware of the consumer protection laws in Canada but presuming they are similar to Australia - a disputed debt is not a debt. It only becomes a debt when the dispute is resolved, usually by agreement or a court. Only actual debts can have enforcement action taken including such things as being pursued by a collection agency or being recorded by a credit reporting agency.</p>

<p>In short: <strong>this is a scam</strong>.</p>

<p>In 2012 I went through a similar process. This is the letter I sent:</p>

<blockquote>
  <p>We are the registered operator of motor vehicle XXXXX and have received your letter dated 6/6/2012 for payment of car parking penalty number XXXXX that you allege we incurred on 6/4/2011.</p>
  
  <p>To the extent that we entered into a contract with you, which is denied, please take this letter to constitute a written appeal in accordance with the appeal process described on your website and/or in your documentation.</p>
  
  <p>We dispute incurring the alleged debt and we dispute entering into any contract with you.  We will defend any action brought against us. You must cease all efforts to collect this alleged debt whilst it remains in dispute, in compliance with National, ACCC and NSW laws and guidelines.  Except as specifically outlined herein, we are requesting that you cease all contact with us about the alleged debt. Any further contact should be strictly in conformity with the ACCC Debt Collection Guidelines (refer <a href="http://tinyurl.com/parking-01" rel="nofollow">http://tinyurl.com/parking-01</a>).  Your contact with us should be limited to:</p>
  
  <ol>
  <li>acknowledging our letter and providing us with any documentation that we have requested</li>
  <li>informing us that you have ceased collection efforts on the alleged debt</li>
  <li>stating that you are taking a specific action in relation to the debt such as commencing court proceedings (note that you can only threaten court proceedings if you intend to start them otherwise you are in breach of the guidelines - refer page 33 "you must not threaten legal action if the start of proceedings is not possible, or not under consideration, or you do not have instructions to start proceedings"). </li>
  </ol>
  
  <p>You must also advise any debt collectors or lawyers you have collecting this debt to stop.  If you or your agents continue to attempt to collect this alleged debt, we will complain in writing to the ACCC, to NSW Fair Trading, and to the car park owner (and if we receive a further letter from your lawyers, we will complain to the Legal Services Commissioner in the lawyer's home state).  </p>
  
  <p>Please send us within 7 days:</p>
  
  <ol>
  <li><p>Confirmation of whether or not you still hold us responsible for this alleged debt.</p></li>
  <li><p>If you still hold us responsible, we require you to properly articulate the facts and matters on which your claim is based.  Please forward us the following particulars:</p>
  
  <ul>
  <li>A copy of the contract we are alleged to have entered into.</li>
  <li>Photographs of any signs that need to be read in conjunction with the alleged contract.</li>
  <li>Details of the actual offence you are claiming. e.g. failure to buy ticket, expired ticket, parking in no-standing etc.  As well as the usual particulars of date, time, precise location with the car park and other facts and matters giving rise to the alleged breach of agreement.</li>
  <li>An itemised breakdown of the debt you are claiming and details on how it was calculated.  Show separately legal costs, court costs, administration costs, costs associated with identifying us as the car owner, patrolling costs and a breakdown of any other costs not already mentioned.</li>
  <li>Pursuant to the Privacy Act, a copy of all photos you have of our car and/or us.  Indicate the date each photo was taken and the name of the person who took the photo.  And forward us any other data that you hold on us that the Privacy Act requires you to disclose.</li>
  <li>The basis on which you allege that we ware a party to the agreement alleged to exist;</li>
  <li>Proof that the alleged debt was incurred by us.</li>
  <li>The name(s) of any lawyers or solicitors who received payments pursuant to any clause in your terms and conditions.  Please show the amounts and dates on which these costs were incurred, and the dates when these payments were made.  Please itemise the work that such lawyers or solicitors performed for you, and indicate which clause in your terms and conditions allows you to hold us liable for such payments. </li>
  <li>A copy of any agreement that the car parking company has with the owner of the car park which covers the handling of disputes and appeals.</li>
  <li>Indicate the amount of money the car park company would have been paid had we entered into the alleged agreement with it, and if the alleged terms and conditions had been followed to the company's satisfaction.  (In other words, how much money do you normally receive for a car to park in your car park for the period of time we are alleged to have parked there for).</li>
  <li>The contact name, postal address, and phone number of each of the following: the car park owner, the car park manager, and the car park operator.</li>
  <li>A copy of your Appeal handing procedure.  As well as setting out what factors are taken into account, state who is the judge or arbitrator and whether they are independent and any other relevant factors to the Appeal. In addition, please give us disclosure of any arguments being put by yourselves on this matter in the Appeal so that we might reply to any new issues which are raised. If you decide to dismiss our appeal, please send us the full reasoning in relation to each of the specific points raised in our letter.</li>
  <li>The name and address of the person you allege was driving our car at the time you allege our car was parked in your car park.</li>
  <li>If you are alleging an agent authorised by us was driving our car, please confirm this in your response and forward us a copy of the agency agreement, along with the name and address of the agent.</li>
  </ul></li>
  </ol>
  
  <p>We put you on notice that should you continue this claim, we will issue an application, seeking orders that:</p>
  
  <ul>
  <li>Any request for a statutory declaration or request from you to prove in anyway that we do not owe this debt is misleading or deceptive conduct, because you are not a government agency and that the burden of proof rests with you as the person who claims the alleged debt.</li>
  <li>The amount claimed pursuant to the alleged contract amounts to a penalty and therefore void at common law.</li>
  <li>Alternatively, the amount claimed is claimed pursuant to a consumer contract within the meaning of the Australian Consumer Law and that the amount claimed is an unfair term within the meaning of section 23 of the ACL and, accordingly, is void.</li>
  </ul>
  
  <p>Finally, this debt remains in dispute until we advise you in writing that we owe this debt.</p>
</blockquote>

<p>I received one further piece of correspondence which didn't address any of the things I asked for and which I ignored and that was the end of the matter.</p>

<p>Focusing on the bold part, if you have an unpaid debt, it can affect you (credit scores are not just about borrowing money). You can find out what they are holding against you, which assuming you are in B.C. would be Equifax Canada and TransUnion. Section 116 of the <a href="http://www.bclaws.ca/civix/document/LOC/complete/statreg/--%20B%20--/Business%20Practices%20and%20Consumer%20Protection%20Act%20[SBC%202004]%20c.%202/00_Act/04002_09.xml#part7" rel="nofollow">Business Practices and Consumer Protection Act</a> does say that</p>

<blockquote>
  <p>(4) A collector must not continue to communicate with a debtor (a)
  except in writing, if the debtor (i) has notified the collector to
  communicate in writing only, and (ii) has provided a mailing address
  at which the debtor may be contacted, (b) except through the debtor's
  lawyer, if the debtor (i) has notified the collector to communicate
  only with the debtor's lawyer, and (ii) has provided an address for
  the lawyer, or (c) if the debtor has notified the collector and the
  creditor that the debt is in dispute and that the debtor would like
  the creditor to take the matter to court.</p>
</blockquote>

<p>So if you have notified the collector and creditor that want the creditor to sue you, then they will stop communicating with you. That is a bit extreme, and certainly getting the creditor to leave you alone would be simplest. <a href="http://lifeofxdage.blogspot.com/2010/06/bbb-helped-solving-diamond-parking.html" rel="nofollow">This note</a> indicates a simple way to make the problem go away (BBB), if it works. Either way, delivering a "leave me alone" message would not have any effect on your credit score. <a href="https://www.ic.gc.ca/eic/site/oca-bc.nsf/eng/h_ca02149.html" rel="nofollow">Here</a> is a multi-provincial page that links to options by province.</p>

<p>This amount owed cannot be revealed to anyone without your consent, so it becomes an effective nullity <em>unless</em> you happen apply for a credit card, rent a house, apply for a loan or something else where as part of the process they check your credit-worthiness. At that point, you are given a piece of paper to sign, which you may not carefully scrutinize, and that form gives them permission to share your creditworthiness-relevant information. If/when it is revealed that there was a problem over an unpaid parking fee, you are legally entitled in insert a 100 word explanation into the report. It is indeed unlikely that a parking company would take you to court to force you to pay. A debt sent to a collection agency can generate the worst score. </p>

<p>There may be jurisdictional and professional differences in what a "debt" is – we here, speaking casual non-legal English, would say that the company coming after you is a debt collector, because you supposedly owe money, and that's a "debt". However, only a court can legally finalize the allegation that it is a legal debt. What you get nicked for on the credit report includes alleged debts.</p>

<p>Per section 109, the source of the information must be provided in the report (giving creditor's name and address). The information must be "the most reliable evidence reasonably available", and there are things that can't be included such as convictions, debts and bankruptcies older than 6 years, forbidden demographics: but it is allowed to include uncorroborated credit information including paying habits, outstanding debt obligations, and obligations. It is against the law to provide false or misleading information to a reporting agency: there is a "but I didn't and couldn't know" defence.</p>
