Is deception a charter right?
Posted by Don McLenaghen on February 20, 2012
Rogers Communications Inc. is asking an Ontario court to strike down part of a federal law requiring a company to have “adequate and proper” tests of a product’s performance before advertising claims about the product — on the grounds that it violates its freedom of expression.
In addition to taking on the performance claims provision of the Competition Act, the telecom giant is arguing before the Ontario Superior Court the hefty financial penalties that can be imposed on a company for making a false or misleading claim are also unconstitutional.
The legal battle with Rogers began in November 2010, when the bureau went to court to levy a $10-million penalty for a “misleading advertising” campaign involving the company’s Chatr discount cell phone service. The bureau is also asking the court to order Rogers to pay restitution to affected customers and refrain from engaging in similar campaigns for the next decade.
In their advertising Rogers’ Chatr claimed to have fewer dropped calls than any other competitor and that its customers had “no worries about dropped calls”. A study of the drop rates between Rogers’ Chatr and the competition showed no difference in drop rates.
The ruling in question and the Competitions law states that before a company can make a advertised claim it must have a test in hand. Rogers is claiming this violates its charter rights to free speech because, and you may want to sit down for this one. IF what it had said was true except when they said it they did not have proof but later they could provide proof then the test would be a violation reason being it would prevent them from saying a true thing because they did not know it was true at the time”.
Make sense? No, not to me either. First the case at hand showed they issued a false and misleading statement. Second, they are saying if there is no proof to the contrary they can claim anything and to prevent them from doing so is a violation of their charter rights (not that I think corporations have charter rights!).
One aspect that plays into this is the amount and type of penalty. First it is not a fine, which is given in criminal court; penalties are handed down by civilian courts. The civilian courts are not subject to the same ‘safeguards’ as criminal cases such as:
Presumption of innocence, the right to a fair trial and to make full a answer and defense, and the privilege against testimonial compulsion.
Although with the exception of the last point, compulsory testimony, I don’t think Rogers is seriously implying that our courts are corrupt and thus they did not get a fair trial or were presumed innocent. It is true the threshold to guilt is a preponderance of evidence as opposed to the classic beyond a reasonable doubt…this I think is why they really want to have the Competitions law seen as criminal law vs. civil. It would be almost impossible to prove the Rogers (and the thousands of people working in it) purposely misled people…they would say “it was a miscommunications” or something.
This is became a more important issue for Rogers because in 2010, the penalty for this infraction went from a paltry $250,000 to $10M for first offence, and $15M for each thereafter.