PART VII.1Deceptive Marketing Practices (continued)
Reviewable Matters (continued)
Marginal note:Sale above advertised price
74.05 (1) A person engages in reviewable conduct who advertises a product for sale or rent in a market and, during the period and in the market to which the advertisement relates, supplies the product at a price that is higher than the price advertised.
(2) This section does not apply
(a) in respect of an advertisement that appears in a catalogue in which it is prominently stated that the prices contained in it are subject to error if the person establishes that the price advertised is in error;
(b) in respect of an advertisement that is immediately followed by another advertisement correcting the price mentioned in the first advertisement;
(c) in respect of the supply of a security obtained on the open market during a period when the prospectus relating to that security is still current; or
(d) in respect of the supply of a product by or on behalf of a person who is not engaged in the business of dealing in that product.
(3) For the purpose of this section, the market to which an advertisement relates is the market that the advertisement could reasonably be expected to reach, unless the advertisement defines the market more narrowly by reference to a geographical area, store, department of a store, sale by catalogue or otherwise.
- 1999, c. 2, s. 22.
Marginal note:Promotional contests
74.06 A person engages in reviewable conduct who, for the purpose of promoting, directly or indirectly, the supply or use of a product, or for the purpose of promoting, directly or indirectly, any business interest, conducts any contest, lottery, game of chance or skill, or mixed chance and skill, or otherwise disposes of any product or other benefit by any mode of chance, skill or mixed chance and skill whatever, where
(a) adequate and fair disclosure is not made of the number and approximate value of the prizes, of the area or areas to which they relate and of any fact within the knowledge of the person that affects materially the chances of winning;
(b) distribution of the prizes is unduly delayed; or
(c) selection of participants or distribution of prizes is not made on the basis of skill or on a random basis in any area to which prizes have been allocated.
- 1999, c. 2, s. 22.
74.07 (1) Sections 74.01 to 74.06 do not apply to a person who prints or publishes or otherwise disseminates a representation, including an advertisement, on behalf of another person in Canada, where the person establishes that the person obtained and recorded the name and address of that other person and accepted the representation in good faith for printing, publishing or other dissemination in the ordinary course of that person’s business.
(2) Sections 74.01 to 74.06 do not apply in respect of conduct prohibited by sections 52.1, 53, 55 and 55.1.
- 1999, c. 2, s. 22;
- 2002, c. 16, s. 9.
Marginal note:Civil rights not affected
74.08 Except as otherwise provided in this Part, nothing in this Part shall be construed as depriving any person of a civil right of action.
- 1999, c. 2, s. 22.
Definition of court
74.09 In sections 74.1 to 74.14 and 74.18, court means the Tribunal, the Federal Court or the superior court of a province.
- 1999, c. 2, s. 22;
- 2002, c. 8, s. 183.
Marginal note:Determination of reviewable conduct and judicial order
(a) not to engage in the conduct or substantially similar reviewable conduct;
(b) to publish or otherwise disseminate a notice, in such manner and at such times as the court may specify, to bring to the attention of the class of persons likely to have been reached or affected by the conduct, the name under which the person carries on business and the determination made under this section, including
(c) to pay an administrative monetary penalty, in any manner that the court specifies, in an amount not exceeding
(d) in the case of conduct that is reviewable under paragraph 74.01(1)(a), to pay an amount, not exceeding the total of the amounts paid to the person for the products in respect of which the conduct was engaged in, to be distributed among the persons to whom the products were sold — except wholesalers, retailers or other distributors, to the extent that they have resold or distributed the products — in any manner that the court considers appropriate.
Marginal note:Duration of order
(2) An order made under paragraph (1)(a) applies for a period of ten years unless the court specifies a shorter period.
(3) No order may be made against a person under paragraph (1)(b), (c) or (d) if the person establishes that the person exercised due diligence to prevent the reviewable conduct from occurring.
Marginal note:Purpose of order
(4) The terms of an order made against a person under paragraph (1)(b), (c) or (d) shall be determined with a view to promoting conduct by that person that is in conformity with the purposes of this Part and not with a view to punishment.
Marginal note:Aggravating or mitigating factors
(5) Any evidence of the following shall be taken into account in determining the amount of an administrative monetary penalty under paragraph (1)(c):
(a) the reach of the conduct within the relevant geographic market;
(b) the frequency and duration of the conduct;
(c) the vulnerability of the class of persons likely to be adversely affected by the conduct;
(d) the materiality of any representation;
(e) the likelihood of self-correction in the relevant geographic market;
(f) the effect on competition in the relevant market;
(g) the gross revenue from sales affected by the conduct;
(h) the financial position of the person against whom the order is made;
(i) the history of compliance with this Act by the person against whom the order is made;
(j) any decision of the court in relation to an application for an order under paragraph (1)(d);
(k) any other amounts paid or ordered to be paid by the person against whom the order is made as a refund or as restitution or other compensation in respect of the conduct; and
(l) any other relevant factor.
Marginal note:Meaning of subsequent order
(6) For the purposes of paragraph (1)(c), an order made against a person in respect of conduct that is reviewable under paragraph 74.01(1)(a), (b) or (c), subsection 74.01(2) or (3) or section 74.02, 74.04, 74.05 or 74.06 is a subsequent order if
(a) an order was previously made against the person under this section in respect of conduct reviewable under the same provision;
(b) the person was previously convicted of an offence under the provision of Part VI, as that Part read immediately before the coming into force of this Part, that corresponded to the provision of this Part;
(c) in the case of an order in respect of conduct reviewable under paragraph 74.01(1)(a), the person was previously convicted of an offence under section 52, or under paragraph 52(1)(a) as it read immediately before the coming into force of this Part; or
(d) in the case of an order in respect of conduct reviewable under subsection 74.01(2) or (3), the person was previously convicted of an offence under paragraph 52(1)(d) as it read immediately before the coming into force of this Part.
Marginal note:Amounts already paid
(7) In determining an amount to be paid under paragraph (1)(d), the court shall take into account any other amounts paid or ordered to be paid by the person against whom the order is made as a refund or as restitution or other compensation in respect of the products.
Marginal note:Implementation of the order
(8) The court may specify in an order made under paragraph (1)(d) any terms that it considers necessary for the order’s implementation, including terms
(a) specifying how the payment is to be administered;
(b) respecting the appointment of an administrator to administer the payment and specifying the terms of administration;
(c) requiring the person against whom the order is made to pay the administrative costs related to the payment as well as the fees to be paid to an administrator;
(d) requiring that potential claimants be notified in the time and manner specified by the court;
(e) specifying the time and manner for making claims;
(f) specifying the conditions for the eligibility of claimants, including conditions relating to the return of the products to the person against whom the order is made; and
(g) providing for the manner in which, and the terms on which, any amount of the payment that remains unclaimed or undistributed is to be dealt with.
Marginal note:Variation of terms
(9) On application by the Commissioner or the person against whom the order is made, the court may vary any term that is specified under subsection (8).
- 1999, c. 2, s. 22;
- 2009, c. 2, s. 424.
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