Originally published in Blakes Bulletin on Competition
Litigation, May 2010
The New Brunswick Court of Queen's Bench has granted Bell
Aliant Regional Communications, Limited Partnership an injunction
restraining Rogers Communications Inc. from claiming that it offers
the "fastest and most reliable speed", "the fastest
speed", or the "most reliable speed" in respect of
its Internet service.
Blakes lawyers Paul Schabas and Ryder Gilliland, representing
Bell Aliant, successfully argued that in light of the launch of
Bell Aliant's FibreOP Internet service, providing
fibre-to-the-premises connections in Fredericton and
Saint John, there was a serious issue to be tried that
Rogers' representations were false and misleading and contrary
to Section 52 of the Competition Act. In particular,
Justice Judy Clendening noted that Rogers had not tested its system
against Bell Aliant's new FibreOP network. "If one
advertises itself to be the 'fastest' or 'the best, or
the most reliable' then on the basis of common sense there
should be a preponderance of technical evidence to support this
claim". The judge stated in support of her finding that Bell
Aliant had a "strong case".
The court also agreed that if an injunction was not granted,
Bell Aliant would potentially suffer irreparable harm, as its
damages would be difficult to quantify as "the loss of
customers and the potential loss of new customers is ... difficult
to assess". Justice Clendening also found that the balance of
convenience favoured enjoining Rogers pending a trial of the issue,
noting that the harm Rogers would suffer "may result from
disallowing misleading advertising". To view the decision of
the New Brunswick Court of Queen's Bench, click
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