Rogers' advertising claims that customers
of its Chatr brand experienced fewer dropped calls than customers
of new entrants, including Wind Mobile and Public Mobile, were not
false or misleading, the Ontario Superior Court held today in
dismissing an application by the Commissioner of Competition.
Other highlights of the decision include:
While drive testing is capable of adequately and properly
testing the fewer dropped calls claim, Rogers did not perform drive
tests in some cities before making the dropped calls claim, and
thus failed to perform adequate and proper tests.
The court applied the "credulous and technically
inexperienced consumer" standard. This standard was derived
from the decision of the Supreme Court in Richard v Time
The Competition Act's civil misleading advertising
provision (specifically, s. 74.01(1)(b)) does not violate the
Charter of Rights and Freedoms. Although the provision
infringes s. 2(b) (freedom of expression), it is a demonstrably
justifiable and reasonable limit that is saved by s. 1 of the
Administrative monetary penalties (AMPs) of up to $10 million
($15 million for subsequent violations) provided for in the
Competition Act's civil deceptive marketing practices
provisions are not "true penal consequences", and thus
they do not engage the protections afforded in criminal proceedings
under s. 11 of the Charter.
The Commissioner of Competition, John Pecman, expressed his
disappointment in a statement:
"We are disappointed that the Court did not agree that
Rogers' claims were misleading to consumers, and we are
currently considering our next steps in this matter. Nevertheless,
we are pleased that the Court has dismissed the constitutional
challenges brought forth by Rogers, and has agreed with our
position that Rogers did not conduct adequate and proper testing
beforehand to support its claims about dropped calls in some
We expect to post an analysis of this important decision
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
The Commissioner of Competition addressed innovation, enforcement and policy initiatives at the Competition Bureau in his keynote speech, "Strengthening Competition: Innovation, Collaboration and Transparency."
Used car listing website operator CarGurus Inc.'s attempt to force rival Trader Corporation to supply it with vehicle listing data has encountered a dead end as the Competition Tribunal denied it leave to commence a private application under several provisions of the Competition Act.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).