Canada: BLG Buzz... October 2012

Last Updated: October 11 2012
Article by Eva Chan and Alexandra Nicol

Most Read Contributor in Canada, November 2017


In 1989, the Unclaimed Intangible Property Act was passed in Ontario, but it was never proclaimed in force. In fact, it has been repealed.

Now the Government of Ontario is seeking comments on a proposed Unclaimed Intangible Property Program. In developing the Program, the Government first would introduce a bill in the Ontario legislature. The proposed legislation would be based principally on the model set out in the Uniform Unclaimed Intangible Property Act ("Uniform Act"), which is available here. The Uniform Act defines "property" broadly to mean an interest in intangible property, including a gift certificate.

In the consultation document, which is available here, the government asks what property should be specifically included or excluded from the Program. The document notes that the Uniform Act allows the government to specifically exclude any property it believes should not be part of the Program. The consultation document notes that Alberta's unclaimed personal property regulation expressly excludes "gift certificates", which definition includes a gift card.

The announcement for the proposed Program is available here. The deadline for submissions is October 12, 2012.


Health Canada is seeking comments on its guidance document on satiety health claims on food. The guidance document advises that satiety claims would be considered function claims and that, in general, they are comparative claims whereby the food bearing the claim shows beneficial effects on measures of satiety when compared to a reference (control) food. The document has a table of examples of acceptable and unacceptable claims. For example:

Acceptable: A serving (of stated size) of X with Y grams of ingredient Z can suppress hunger longer than the same amount of X without ingredient Z.

Unacceptable: Ingredient Z helps suppress hunger (no comparator; extrapolation of the effect of an ingredient or generic macronutrient content across product types or forms cannot be made without supporting evidence).

The claim must be substantiated by scientific evidence using human studies as further described in the document. Guiding principles for the substantiation of satiety health claims are set out in the document as well.

A copy of the consultation is available here, and the draft guidance document is available here. The deadline for comments is November 12, 2012.


Earlier this fall, Danone settled a class action lawsuit that had been brought against the company in Québec Superior Court. The lawsuit claimed the company made unproven health claims, notably that Danone yogurt can strengthen your immune system and regulate digestion. Danone is said to have agreed to pay $1.7 million to Canadians who bought Activia®, Activia® Light or DanActive® after April 1, 2009. The settlement agreement must be approved by the Québec Superior Court at a hearing scheduled on November 6, 2012. This is a reminder that companies must be careful to justify any health claims made in product advertisements.


Internationalized Domain Names ("IDNs") may be made available in early January 2013. The Canadian Internet Registration Authority ("CIRA") has started to develop the policies for the implementation of, and the technology to implement, IDNs.

The CIRA currently offers .ca domain names in non-accented letters from a to z, as well as numbers (0-9) and hyphens. The CIRA has conducted two consultations about the proposed implementation of French characters at the second level (ie. to the left of the dot).

For information about IDNs, including comments from the consultations, visit CIRA's website here.


This summer, the Office of the Privacy Commissioner of Canada ("OPC") conducted research to determine the degree of disclosure of a website user's personal information to third parties without proper knowledge or consent. Last month, the OPC issued a press release stating that the research identified significant privacy concerns with approximately 1 in 4 of the sites tested. The sample size was relatively small (25 websites); however, the sites were described as sophisticated and popular sites targeted to Canadians and operated by large organizations. It was noted that in some cases, the websites did not appear to comply with their own privacy policies.

More information regarding the "web leakage" research project is available here.

If you have not done so already or recently, we recommend you review your website protocols and online privacy policy and procedures to determine whether they are in compliance with privacy laws.


Last month, the Competition Bureau announced that it had coordinated a worldwide sweep for online and mobile fraud. The sweep was "designed to identify vendors who do not properly disclose the terms of online and mobile transactions that can result in consumers facing recurring charges, usage fees and contract terms that they did not intend to accept". The results of the sweep still need to be analyzed.


Last month, the Competition Bureau announced that it has begun legal proceedings against a number of major telecommunication companies with respect to misleading advertising in the context of "premium texting services". According to the Bureau, "digital content...was offered through advertisements in popular free apps on wireless devices, as well as online, and consumers were led to believe that these products were free, when they were not. The key is that users need to understand and knowingly accept these charges." The Bureau is seeking full customer refunds and administrative monetary penalties of $10 million each from the companies targeted.


If you are making a telemarketing call to a consumer, do not forget to comply with the Unsolicited Telecommunications Rules ("Rules") established by the CRTC, which are available here.

Last month, in Telecom Decision CRTC 2012-478, the CRTC imposed a total administrative monetary penalty of $8000 against Eatons Commercial & Residential Services Ltd. for (i) initiating telemarketing calls to consumers whose numbers were registered on the National Do Not Call List ("DNCL"), (ii) not being a registered subscriber to the National DNCL, and (iii) not having paid all applicable fees to the National DNCL operator. The decision provides some examples of measures that Eatons should adopt to comply with the Rules. They include registering with the National DNCL operator, subscribing to the National DNCL, downloading the National DNCL at least once every 31 days prior to the date of a telemarketing call and establishing and implementing adequate written policies and procedures to comply with the Rules. The decision is available here.

The CRTC has been very active in trying to reduce unwanted calls made to Canadians. Earlier this year, the CRTC concluded a five-month investigation and took enforcement action against 85 companies for breaking the Rules. The CRTC has the power to impose penalties as high as $15,000 for each violation. Moreover, the CRTC recently served two companies in India with notices of violation requiring them to comply with the Rules and to pay administrative monetary penalties amounting to $507,000. "Foreign-based telemarketers have been put on notice that they must comply with our rules when calling Canadians," said Andrea Rosen, the CRTC's Chief Compliance and Enforcement Officer.

Those wanting to engage in telemarketing calls should also keep in mind other legal aspects such as the telemarketers' requirements under the Competition Act and licensing requirements in British Columbia.


In June 2012, Bill C-430, An Act to amend the Competition Act and the Food and Drugs Act (child protection against advertising exploitation), was introduced. The enactment of this private member's bill would prohibit advertising and promotion, for commercial purposes, of food, drugs, cosmetics, devices or other products directly to children under 13 years of age. Even if advertising or promotion is intended for persons 13 years of age or older, it may be found to be directed to persons under 13 years of age.

A copy of this bill is available here.

To date, Quebec is the only Canadian province that expressly prohibits advertising directed to children.


On August 4, 2012, new food allergen labelling requirements under Canada's Food and Drug Regulations came into force. Among other things, declarations of the source of the food allergen, gluten source and added sulphites must be shown on the label of the product either in the list of ingredients or in a statement entitled "Contains", and the name of the source must be stated in a consistent and easy-to-understand terminology as set out in the regulations (e.g., if casein is present, the name "milk" must be used).

Also this summer, Health Canada released its position on gluten-free claims, which is available here, and the CFIA released a statement regarding its compliance and enforcement of gluten-free claims, which is available here.

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