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Rogers Raises Charter Defence to Misleading Advertising Suit by Competition Bureau

December 4, 2012

Authors: Jennifer McKenzie, Tamarah Luk and Tatiana Lazdins

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 (the Charter):

  • 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 marketing campaign.

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 compulsion.

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 innovation.

The trial on the merits has been adjourned to March 2012.

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Jennifer McKenzie Jennifer McKenzie
B.A. (Hons.), LL.B.
416.957.1628  email Jennifer McKenzie