Canadian COMPETITION LAW

SWEEPING CANADIAN COMPETITION ACT
AMENDMENTS (BILL C-59) PASSED JUNE 20, 2024

On June 20, 2024, Bill C-59 was passed (the Fall Economic Statement Implementation Act, 2023), which introduced the third of three significant rounds of amendments to Canada’s federal Competition Act in two years (together with Bill C-19 and Bill C-56). This new round of amendments to the Competition Act completes a sweeping overhaul of the Competition Act across virtually all key provisions of Canada’s competition legislation. These amendments are also the most significant changes to Canadian competition law since the modern Competition Act came into effect in 1986 replacing the former Combines Investigation Act.

The Bill C-59 amendments, among other things, strengthen the Competition Bureau’s powers to enforce key deceptive marketing provisions of the Competition Act (e.g., relating to drip pricing, performance claims and ordinary selling price (OSP) claims), strengthen private party rights to seek Competition Tribunal remedies (e.g., for civil deceptive marketing and violations of the civil agreements provisions of the Act), introduce new penalties (e.g., administrative monetary penalties for violating the civil agreements provisions of the Act and for reprisal actions penalizing individuals for complying with the Act) and introduce a new clearance regime for environmental protection related agreements. Canada’s Competition Act merger review regime was also substantially overhauled, eliminating the efficiency defence, introducing market share presumptions and a more restrictive remedial test for restoring competition.

These amendments, together with those enacted in June 2022 and December 2023 (Bill C-19 and Bill C-56), increase the potential competition law risk for companies, trade and professional associations and other entities, particularly those without credible and effective competition law compliance programs and that have not reviewed their business practices to reflect Canada’s new competition laws. For the Competition Bureau’s summary of the June 20, 2024 Bill C-59 amendments to the Competition Act, see: Guide to the June 2024 amendments to the Competition Act (June 25, 2024).

Our blogs will be updated to reflect these amendments.

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CANADIAN ADVERTISING LAW
FREQUENTLY ASKED QUESTIONS (FAQS)

“This legislation is the expression of a social purpose, namely the establishment of more ethical trade practices calculated to afford greater protection of the consuming public. It represents the will of the people of Canada that the old maxim caveat emptor, let the purchaser beware, yield somewhat to the more enlightened view caveat venditor – let the seller beware.”

(Matheson J.,
R. v. Colgate-Palmolive Ltd.)

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“The general impression test … must be applied from a perspective similar to that of ‘ordinary hurried purchasers’, that is, consumers who take no more than ordinary care to observe that which is staring them in the face upon their first contact with an advertisement. The courts must not conduct their analysis from the perspective of a careful and diligent consumer. … In sum, it is clear that … the ‘general impression’ test … is the impression of a commercial representation on a credulous and inexperienced consumer. … courts view the average consumer as someone who is not particularly experienced at detecting the falsehoods or subtleties found in commercial representations.”

(Supreme Court of Canada,
Richard v. Time)

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OVERVIEW OF MISLEADING ADVERTISING
AND OTHER ADVERTISING/MARKETING PROVISIONS 
OF THE FEDERAL COMPETITION ACT

What is “Misleading Advertising”?

The federal Competition Act is one of the main statutes governing advertising and marketing in Canada, together with provincial and territorial consumer protection laws. It contains criminal and civil sections that prohibit false or misleading representations and deceptive marketing practices. These are commonly referred to as the Competition Act’s “misleading advertising” provisions.

The general civil misleading advertising provision of the Competition Act (s. 74.01(1)(a)) prohibits representations to the public, to promote a product or any business interest, that is false or misleading in a material respect. Section 52 of the Competition Act, which is the general criminal misleading advertising provision, is substantially similar but also requires that false or misleading claims be made intentionally (i.e., “knowingly or recklessly”).

In addition to the “general” misleading advertising provisions, the Competition Act also contains a number of other criminal and civil provisions that either prohibit (i.e., make criminal offences) or civilly regulate specific types of advertising/marketing practices.

These include: bait and switch selling (section 74.02(2)), deceptive prize notices (section 53), deceptive telemarketing (section 52.1), double ticketing (section 54), drip pricing (sections 52(1.3) and 74.01(1.1)), specific types of electronic advertising (section 74.011), multi-level marketing and pyramid selling schemes (sections 55 and 55.1), ordinary selling price (OSP) claims and sale claims (sections 74.01(2)-(3)), performance claims (sections 74.01(1)(b)-(b.2)), promotional contests/sweepstakes (section 74.06), selling products above advertised prices (section 74.05) and testimonials and endorsements (e.g., influencer marketing) (sections 52, 74.01 and 74.02).

Is misleading advertising a criminal offence
or a civil matter in Canada?

Under the federal Competition Act, general misleading advertising may be pursued by the Competition Bureau either as a civil “reviewable practice” (under section 74.01) or as a criminal offence (under section 52). The Competition Bureau has issued guidelines that set out its position as to when it is likely to proceed on a criminal as opposed to a civil track for misleading advertising.

In general, the Competition Bureau will pursue a civil track unless there is clear and compelling evidence suggesting that an accused knowingly or recklessly made a false or misleading representation to the public and a criminal prosecution would be in the public interest.

In making a public interest determination, the Competition Bureau may consider a number of factors including: (i) whether there was substantial harm to consumers that could not adequately be dealt with by civil remedies; (ii) whether the deceptive practices targeted vulnerable groups; (iii) whether timely attempts were made to remedy the adverse effects of the conduct; and (iv) any evidence of similar conduct in the past. The Competition Bureau may also consider certain mitigating factors, including whether a prosecution or conviction would be disproportionately harsh or oppressive and the existence of a credible and effective compliance program.

Civil actions and class actions can also be commenced for violations of the criminal misleading advertising provisions under section 36 of the Competition Act (see below).

What are the Competition Bureau’s
misleading advertising
enforcement priorities?

The Competition Bureau commences a wide variety of both criminal and civil misleading advertising related cases and devotes a significant portion of its enforcement and advocacy resources to false and misleading claims.

The Competition Bureau’s misleading advertising enforcement priorities have consistently included false or misleading price claims (e.g., drip pricing), false or misleading testimonials and endorsements (e.g., where the material connection between a brand and influencer is not adequately disclosed), performance claims that are made without adequate and proper testing and ordinary selling price or sale claims that fail to meet the statutory tests under section 74.01 of the Competition Act.

What other kinds of marketing practices
are included in the Competition Act?

In addition to the general misleading provisions, the Competition Act also sets out certain misleading advertising related criminal offences (under Part VI of the Act – Offences in Relation to Competition), which are subject to fines and imprisonment, and reviewable matters (under Part VII.1 of the Act – Deceptive Marketing Practices), which are subject to civil penalties including administrative monetary penalties (AMPs, which are essentially civil fines).

These include: bait and switch selling (section 74.02(2)), deceptive prize notices (section 53), deceptive telemarketing (section 52.1), double ticketing (section 54), drip pricing (sections 52(1.3) and 74.01(1.1)), specific types of electronic advertising (section 74.011), multi-level marketing and pyramid selling schemes (sections 55 and 55.1), ordinary selling price (OSP) claims and sale claims (sections 74.01(2)-(3)), performance claims (sections 74.01(1)(b)-(b.2)), promotional contests/sweepstakes (section 74.06), selling products above advertised prices (section 74.05) and testimonials and endorsements (e.g., influencer marketing) (sections 52, 74.01 and 74.02).

REQUIRED ELEMENTS FOR THE
GENERAL MISLEADING ADVERTISING
PROVISIONS OF THE COMPETITION ACT

What has to be proven
to establish misleading advertising?

For a representation to be false or misleading under section 74.01(1)(a) of the Competition Act (the general civil misleading advertising section), it must be established on the civil burden of proof (i.e., balance of probabilities) that: (i) a representation has been made, (ii) to the public, (iii) to promote a product or any business interest, (iv) the representation is false or misleading and (v) the representation is “material”.

The general criminal misleading advertising offence under the Competition Act (subsection 52(1)) is substantially the same, except that in addition to all of the above elements it must also be proven that a representation was made “knowingly or recklessly” (i.e., subjective intent). The burden of proof for criminal misleading advertising is the general criminal burden (i.e., proof beyond a reasonable doubt).

For civil actions or class actions for misleading advertising commenced under section 36 of the Competition Act, all of the elements of a criminal offence under section 52 must be established and also that the plaintiff (or plaintiffs in a class action) have suffered actual loss or damage.

What is a “representation”?

The first necessary element to prove misleading advertising under the Competition Act is that a “representation” (i.e., some type of print or oral claim, etc.) has been made. This element is typically easily met and is broader than mere advertising. A representation may encompass printed, oral, broadcast and visual representations or claims. The Competition Bureau’s position is also that all representations, regardless of media, are subject to the Competition Act.

Online representations also fall within the scope of “representation” and the Competition Bureau has issued enforcement guidance addressing online misleading advertising.

The Competition Bureau also periodically conducts online “sweeps” of Internet advertising (typically once or twice a year in particular industry sectors) as part of its misleading advertising and deceptive marketing enforcement and advocacy efforts.

What does “to the public” mean?

The second element of misleading advertising is that a representation must be made to the “public”. Canadian courts have, with a few exceptions, had little difficulty in finding that advertising and marketing claims have been made “to the public” and have interpreted this element very broadly.

A representation may be made to a single person and be to the public. In addition, as a result of 2009 Competition Act amendments, a representation does not need to be made in a place where the public has access (e.g., telemarketing or private marketing seminars or presentations) or to the Canadian public (as such, cross-border marketing to non-Canadians that is false or misleading can also be caught).

In addition, the Competition Act also contains provisions deeming certain types of conduct to be a representation to the public.

What does “promote a product
or business interest” mean?

The third element of misleading advertising is that a representation must be made to promote either a product, including professional or other services, or any business interest, which may be merely a subsidiary or indirect intention of a representation.

A “Business interest” must be the business interest of the person making the representation, but has been interpreted broadly and may include any business interest and not necessarily an interest with the persons who might be misled by the representation. Misleading claims by charities and non-profits have also been held in some cases to be for a “business interest”.

Based on the broad wording of sections 52 and 74.01 of the Competition Act, misleading advertising can include not only false or misleading claims in the consumer product context, but also many types of business related claims (e.g., false or misleading claims relating to securities, sale of franchises and other types of business related opportunities).

What does “false or misleading” mean?

The fourth element of misleading advertising is that a representation must be literally false or misleading. In this regard, both the literal meaning and the “general impression” conveyed by the representation are relevant.

Also, in determining whether a representation is false or misleading, the entire context of the representation, including illustrations, photographs and the association of words, phrases and imagery must all be considered.

Importantly, advertising can be literally true (i.e., each statement read separately or in isolation is true) and still misleading if the overall impression is misleading. Another example of when literally true claims may still be misleading is when not all material elements of a claim (e.g., additional fees or conditions or limitations) are included upfront when a consumer is making the purchasing decision.

What does “material” mean?

Finally, to contravene both the general civil and criminal misleading advertising provisions of the Competition Act, a representation must also be false or misleading in a “material respect.”

For this materiality requirement, is not necessary to show that anyone has actually been deceived or misled and the monetary amount involved is irrelevant, though these can be relevant for determining the appropriate penalty.

The relevant question, though Canadian courts have been inconsistent in articulating the standard, has in many cases been held to be whether an “average consumer” interested in using the relevant product would be influenced in deciding whether or not to purchase the product being offered or otherwise alter their conduct.

While many courts have adopted this “average consumer” as the relevant test, some courts (including the Supreme Court of Canada in a Quebec consumer protection legislation case) have adopted lower tests according to the factual circumstances. As such, advertisers cannot assume that their advertising will be tested against a standard as high as an “average consumer”, given that some Canadian courts have adopted a lower standard, which creates more potential risk for advertisers.

As to what types of specific information may be considered to be “material”, many Canadian courts have found that false or misleading representations in relation to price and other key aspects of a product or service, such as performance, are material.

The omission of important information (e.g., additional fees), conditions or limitations can also support an argument that a claim is false or misleading in a material respect.

Does a false or misleading claim
need to be made intentionally?

To establish criminal misleading advertising under section 52 of the Competition Act, it must also be shown, in addition to all of the other necessary elements for misleading advertising, that a representation was made intentionally (i.e., “knowingly or recklessly”).

Subjective intent is not required, however, for civil misleading advertising related provisions under Part VII.1 of the Competition Act.

CANADIAN CONTEST/SWEEPSTAKES LAWS

Are product performance claims prohibited
by the Competition Act?

No.

However, in addition to the general civil and criminal misleading advertising provisions of the Competition Act, section 74.01(1)(b), which is a stand-alone product performance claim provision, prohibits any person from making any representation to the public about the performance, efficacy or length of life of a product that is not based on an “adequate and proper test”.

The testing or verification of any product performance claim must be made before the claim is made and the onus is on the person making the representation to prove that the claim is based on an adequate and proper test as required by section 74.01(1)(b).

While performance claims can be a legitimate means to distinguish goods or services from competitors, it is important that adequate and proper testing is performed before the claim is made.

The Competition Tribunal and Canadian courts have held that a non-exhaustive list of factors can be relevant in considering whether a test is “adequate and proper” for the purposes of section 74.01(1)(b), that whether a test is “adequate and proper” is a factual question and that the testing does not need to be 100% reliable or the best scientific testing that could have been performed (i.e., the testing does not need to meet a test of certainty).

Do the performance claims provisions
of the Competition Act apply to “green claims”
(i.e., environment related products or services)?

Yes.

In addition to the above standalone general product performance claim provision (section 74.01(1)(b)), as a result of amendments to the Competition Act passed on June 20, 2024 under Bill C-59, two specific new provisions can now apply to environment-related performance claims.

The first new performance claim provision (section 74.01(1)(b.1)) captures representations to the public for the purposes of, directly or indirectly, promoting the supply or use of a product or any business interest in the form of a statement, warranty or guarantee of a product’s benefits for protecting or restoring the environment or mitigating the environmental, social and ecological causes or effects of climate change that is not based on an adequate and proper test (the proof of which lies on the person making the representation).

This performance claim provision may apply to environmental performance claims relating to a specific product and includes the same testing requirement (adequate and proper test) to substantiate claims as the general performance claim provision of the Competition Act (section 74.01(1)(b)). For this reason, existing case law with respect to what constitutes an adequate and proper test should remain helpful in interpreting this new provision.

The second new performance claim provision (section 74.01(1)(b.2)) captures representations to the public for the purposes of, directly or indirectly, promoting the supply or use of a product or any business interest with respect to the benefits of a business or business activity for protecting or restoring the environment or mitigating the environmental and ecological causes or effects of climate change that is not based on adequate and proper substantiation in accordance with internationally recognized methodology (the proof of which lies on the person making the representation).

This performance claim provision may apply to environmental performance claims relating to the benefits of a business or business activity in general (for example, that a brand, compared to a particular product, is “carbon neutral” or “net zero”). This second new performance claim provision has also introduced a new testing requirement for substantiating these types of environmental claims (“adequate and proper substantiation in accordance with internationally recognized methodology”). The Competition Act does not define “internationally recognized methodology”. As such, it will remain to be seen how the Competition Bureau and the Competition Tribunal interpret this new testing standard.

For more information, see: Performance Claims and Green Claims.

Is “drip pricing” prohibited in Canada?

Yes.

On June 23, 2022, Bill C-19 (the Budget Implementation Act, 2022, No.1) received royal assent, which introduced significant amendments to Canada’s federal Competition Act.

These amendments included new civil and criminal prohibitions on drip pricing (i.e., failing to disclose the full price of a product or service upfront with additional fees only disclosed, for example, in a long disclaimer or later in an online checkout process) (sections 52(1.3) and 74.01(1.1) of the Competition Act).

The drip pricing provisions were further strengthened on June 20, 2024 under amendments to the Competition Act (Bill C-59) that make it clear that the only additional fees that a seller can “drip” (i.e., not disclose upfront) are those imposed directly on a purchaser by provincial or federal legislation (e.g., sales taxes).

The Competition Act now defines drip pricing as follows: “… the making of a representation of a price that is not attainable due to fixed obligatory charges or fees … unless the obligatory charges or fees represent only an amount imposed on a purchaser of the product … by or under an Act of Parliament or the legislature of a province”.

Drip pricing has been one of the Competition Bureau’s deceptive marketing enforcement priorities over the past several years, together with false or misleading performance claims, ordinary selling price (OSP) claims and misleading testimonials/endorsements.

Is comparative advertising prohibited
by the Competition Act?

No.

Comparative advertising can lead to price and other competition by allowing prospective customers to compare prices and service offerings.

While comparative advertising is not itself prohibited under the Competition Act, and accurate and truthful comparisons can be highly pro-competitive, comparative advertising can in some instances raise issues (e.g., where unfounded product performance claims are made, false or misleading claims are made about a competing brand or a competitor’s name, trademarks or other intellectual property is used without permission).

As such, when making comparative advertising claims, it is prudent to ensure that, as is the case with advertising in Canada generally, claims are accurate, that any important information or conditions are clearly disclosed upfront to consumers and, if performance claims form part of the comparative advertising, that the claims are substantiated before the claims are made.

What are the penalties in Canada
for misleading advertising?

The potential penalties for violating the Competition Act’s criminal or civil misleading advertising provisions can be severe.

Some of the potential penalties for violating the civil deceptive marketing practices provisions under Part VII.1 of the Competition Act include Competition Tribunal or court orders to stop the conduct, publish a corrective notice, pay restitution to consumers and orders to pay AMPs.

Following 2022 amendments to the Competition Act, the maximum AMPs for civil deceptive marketing increased: (i) for individuals, up to the greater of $750,000 ($1 million for each subsequent order) and three times the value of the benefit derived from the deceptive conduct; and (ii) for corporations, up to the greater of $10 million ($15 million for each subsequent order) or three times the value of the benefit derived from the deceptive conduct or, if the latter amount cannot be reasonably determined, 3% of the corporation’s annual worldwide gross revenues.

In addition, as a result of June 2024 amendments to the Competition Act (under Bill C-59), starting on June 20 2025, private parties will also be able to seek leave from the Competition Tribunal to commence proceedings under the civil deceptive marketing practices provisions (Part VII.1) with the only leave requirement for standing being that the proceedings are in the “public interest”.

The potential penalties for violating the general criminal misleading advertising section of the Competition Act (section 52) include, on indictment, a fine in the discretion of the court and/or imprisonment for up to 14 years and, on summary conviction, a fine of up to $200,000 and/or imprisonment for up to one year.

In practice, many misleading advertising matters are resolved by way of negotiated settlement with the Competition Bureau under a consent agreement. In some cases, a misleading advertising matter may also be resolved voluntarily without formal proceedings.

In other cases, however, particularly where there is evidence of intent or fraud, the Competition Bureau may seek significant criminal penalties and imprisonment (e.g., in the case of clearly intentional misleading advertising, deceptive telemarketing schemes, etc.).

Are private actions or class actions
possible under the Competition Act
for misleading advertising?

Yes.

Private parties can commence private actions or class actions seeking damages actions for contravention of the criminal provisions of the Competition Act, including section 52 (the criminal general misleading advertising provision) or other criminal misleading advertising related offences under Part VI of the Competition Act.

The necessary elements to be proven are all of the elements of the relevant criminal offence (e.g., all of the required elements of criminal misleading advertising under section 52 of the Competition Act) and that a plaintiff (or plaintiffs in the case of a class action) have suffered actual loss or damage as required by section 36.

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SERVICES AND CONTACT

We are a Toronto based competition and advertising law firm offering business and individual clients efficient and strategic advice in relation to competition/antitrust, advertising, Internet and new media law and contest law. We also offer competition and regulatory law compliance, education and policy services to companies, trade and professional associations and government agencies.

Our experience includes advising clients in Toronto, Canada and the United States on the application of Canadian competition and regulatory laws and we have worked on hundreds of domestic and cross-border competition, advertising and marketing, promotional contest (sweepstakes), conspiracy (cartel), abuse of dominance, compliance, refusal to deal and pricing and distribution matters. For more information about our competition and advertising law services see: competition law services.

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