The recent announcement by the Competition Bureau that their
strategic plan emphasizes safe-guarding Canadians against
anti-competitive and deceptive conduct through active enforcement
as a main focus makes a consideration of misleading advertising
timely. This month we discuss the types of remedies available to
the Commissioner of Competition.
Remedies for Reviewable Matters
The Commissioner of Competition may apply to the Competition
Tribunal, the Federal Court or a superior court of a province
seeking a remedy relating to a reviewable matter. As discussed in
the May letter “reviewable conduct” includes misleading
advertising and the like. If the Tribunal or the court finds that a
person has engaged in reviewable conduct contrary to the Act, they
may make any combination of the following orders:
a) A cease and desist order requiring the person to stop the
activity complained of and not to engage in substantially similar
conduct for a period of 10 years unless the order specifies a
b) A temporary order that the person not engage in that conduct
or substantially similar reviewable conduct for such period as the
court considers sufficient to meet the circumstances of the case
i) serious harm is likely to ensue unless the order is made;
ii) the balance of convenience favours making the order.
c) Payment of an administrative monetary penalty, in any manner
that the court specifies, in an amount not exceeding:
i) in the case of an individual, $750,000 and, for each
subsequent order, $1,000,000, or
ii) in the case of a corporation, $10,000,000 and, for each
subsequent order, $15,000,000.
d) Publication, in such manner and at such times as is
specified, of a “corrective” notice directed to the
class of persons likely to have been affected by the impugned
conduct. The notice will include the name under which the person
carries on business and the determination made as well as:
i) a description of the reviewable conduct;
ii) the time period and geographical area to which the conduct
iii) a description of the manner in which any representation or
advertisement was disseminated, including, where applicable, the
name of the publication or other medium employed.
e) Payment as restitution of an amount, not exceeding the total
of the amounts paid to the person for the products in respect of
which the conduct was engaged in, to be distributed among the
persons to whom the products were sold-except wholesalers,
retailers or other distributors, to the extent that they have
resold or distributed the products- in any manner that the court
f) If a court finds a strong prima facie case that a person is
engaging in or has engaged in conduct that is reviewable as a false
or misleading representation, and the court is satisfied that the
person owns or has possession or control of articles within the
jurisdiction of the court and is disposing of or is likely to
dispose of them by any means, and that the disposal of the articles
will substantially impair the enforceability of an order made for
restitution as described above the court may issue an interim
injunction forbidding the person or any other person from disposing
of or otherwise dealing with the articles, other than in the manner
and on the terms specified in the injunction.
The remedies are significant and are typically combined with
significant adverse publicity associated with this type of
proceeding. There is considerable merit in implementing a
compliance program to ensure that no problems occur.
Protecting Fluid Trademarks: Best Practices Uncovered!
I have been asked to speak at a webinar sponsored by the
Knowledge Group to deal with this topic. The webinar is scheduled
to take place on Tuesday, July 14. If you are interested in
attending, please click here.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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A recent Saskatchewan Court of Queen's Bench decision allowed a court-appointed receiver to sell and transfer intellectual property rights free and clear of encumbrances, finding that a license to use improvements of an invention was a contractual interest and not a property interest.
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