On August 7, 2012, the Ontario Superior Court resumed hearing
arguments for the case Commissioner of Competition v. Rogers
Communications. Rogers has challenged the constitutionality of
the two civil provisions of the Competition Act under ss.
2(b) and 11 of the Canadian Charter of Rights and Freedoms
s. 74.01(1)(b), which requires representations regarding the
performance of a product or service be based on "adequate and
proper" testing, the proof of which lies on the party making
the representation, and
s. 74.1(1)(c), which defines a maximum administrative monetary
penalty (AMP) of $10 million.
The Competition Bureau claims that Rogers contravened the
"adequate and proper" test requirement in a 2009
Rogers argues, in part, that the increased AMPs are of a
magnitude sufficient to be criminal in nature. However, it argues
they are imposed without the safeguards of criminal proceedings
provided by s. 11 of the Charter, such as a proof beyond reasonable
doubt, presumption of innocence, and privilege against testimonial
Rogers also argues that requiring tests to substantiate a
performance claim violates the right to freedom of expression
protected by s. 2(b) of the Charter. Specifically, Rogers argues
that the "adequate and proper" testing requirement
prohibits truthful claims, including claims made on a reasonably
held belief that such claims are accurate and claims proven to be
accurate through post-claim testing. Rogers alleges these types of
claims are harmless, play an important role in consumer choice, and
may have a significant positive impact on prices and product
The trial on the merits has been adjourned to March 2012.
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