pexels-photo-326514
This post has been prepared in collaboration with Chris Cole of Crowell & Moring law firm. Chris Cole is the Co-Chair of Crowell’s Advertising & Product Risk Management Group in Washington, D.C.

In less than three months, Canada will introduce a private right of action arising from false or misleading representations made in electronic messages. These provisions target false or misleading advertisements in, for example, email and social media and arguably capture website advertising based on the law’s broad definition of “electronic message.” Government-initiated enforcement of these provisions has already taken place through Canada’s Competition Bureau since 2014, which has led to Consent Agreements against Avis, Budget (following a contested application), Amazon, Hertz, and Dollar Thrifty. Even more concerning, the law applies statutory penalties to each violation. The closest United States analog to such a law would be the Telephone Consumer Protection Act, which carries penalties for violation of up to $1500 per violation.

The new private right of action is expected to give rise to significant class action litigation in Canada, including against US and global businesses that engage in digital advertising in Canada. It is also expected to be an attractive method of challenging a competitor’s representations regarding a product or service. Driving these incentives will be the law’s statutory penalties of $200 per occurrence (not to exceed $1 million per day).

The following outlines the nature of this private right of action and take-aways for businesses that advertise in Canada.


Continue Reading

complex-664440_1280In what appears to be a dramatic shift in Canada’s foreign investment review policy, the federal government has recently approved the acquisition of ITF Technologies Inc. (“ITF”), a Montreal-based technology firm, by O-Net Communications Holdings Limited (“O-Net”), a Chinese developer of optical networking components, which is said to be effectively controlled

toronto-1900651_640

Canadian government responses to two requests made by Fasken Martineau under the Access to Information Act (AIA) and the recent publication by Innovation, Science and Economic Development Canada (ISED) of its Annual Report Investment Canada Act 2015-16 evidence that Canada’s power to conduct national security reviews under the Investment Canada Act (ICA) in respect of foreign investments in Canada has rarely been invoked during the almost 8 years that such power has existed.

Because of the confidentiality obligations imposed on government officials by the ICA and the sensitive nature of the assessment process which is intended to safeguard Canada’s national security interests, the Government historically has been reluctant to comment publicly on specific investments that it has subjected to national security reviews or on the review process in general.  For a considerable period of time, this reluctance extended to even providing statistics on the number of national security reviews that it had actually undertaken.


Continue Reading

mailboxes-1838667_1280

Now that 2017 has arrived, we are less than seven months away from private enforcement (particularly through class actions) for false or misleading electronic messages. CASL’s  amendments to the Competition Act sought to address deceptive marketing practices in the electronic marketplace. Three reviewable practices were created – all within section 74.011 of the Competition Act – that focus on false or misleading representations in electronic messages, such as in the subject line of an email, the body of an email and in URLs and metadata.

To date, public enforcement of section 74.011 through the Competition Bureau has taken place on two occasions: the Avis and Budget Consent Agreement (following a contested application before the Competition Tribunal) and the Amazon Consent Agreement.

As discussed below, private enforcement of section 74.011 of the Competition Act by way of class actions is forthcoming.  Companies that engage in any form of digital marketing are best served by being proactive to prevent becoming a defendant of choice.


Continue Reading

calgary-1751847_1920The Competition Bureau (Bureau) announced on December 7, 2016 that the Commissioner of Competition (Commissioner) had reached a settlement with Moose International Inc. (Moose) regarding his concerns over Moose’s “Made in Canada” advertising and labelling with respect to certain of its premium brand parkas.  The settlement brings to an end legal proceedings between the parties