Commissioner of Competition v. Premier Career Management Group Corp. et al., 2009 FCA 295

• Judge: Létourneau, Sexton and Layden-Stevenson, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: September 16, 2009
• Jurisdiction: Canada (Federal)
• Citations: 2009 FCA 295;(2009), 395 N.R. 199 (FCA)

Competition Commr. v. Premier Career Mgt. (2009), 395 N.R. 199 (FCA)

MLB headnote and full text

Temp. Cite: [2009] N.R. TBEd. NO.004

The Commissioner of Competition (appellant) v. Premier Career Management Group Corp. and Minto Roy (respondents)

(A-476-08; 2009 FCA 295)

Indexed As: Commissioner of Competition v. Premier Career Management Group Corp. et al.

Federal Court of Appeal

Létourneau, Sexton and Layden-Stevenson, JJ.A.

October 15, 2009.

Summary:

Roy was the sole director and shareholder of Premier Career Management Group Corp., an employment consulting business (the respondents). The Commissioner of Competition alleged that the respondents made misleading representations, individually and in private, to a number of potential clients regarding their prospects for success in the job market, in violation of s. 74.01(1)(a) of the Competition Act (misleading advertisements made to the public).

The Competition Tribunal held that although the representations were misleading, they were not made "to the public" because they were made in the privacy of the respondents' office on a one-to-one basis. The Commissioner appealed and sought a number of remedies. The respondents put in question the character of the representations.

The Federal Court of Appeal allowed the appeal. The decision that the representations were not made "to the public" constituted an error of law. The respondents solicited, by means of advertising, members of the public to utilize their services in order to obtain employment. Once members of the public sought help from the respondents, similar misleading representations were made to each of such members of the public. There was no palpable and overriding error in the decision that the representations were materially misleading. The court remitted the matter to the Tribunal for the appropriate remedial order under s. 74.1.

Statutes - Topic 501

Interpretation - General principles - Purpose of legislation - Duty to promote object of statute - [See fourth Trade Regulation - Topic 645 ].

Statutes - Topic 1446

Interpretation - Construction where meaning is not plain - Aids or methods to determine meaning - By reference to other provisions in the same Act - [See second Trade Regulation - Topic 645 ].

Statutes - Topic 1452

Interpretation - Construction where meaning is not plain - Aids or methods to determine meaning - Legislative history - Reference to subsequent amendments - [See third Trade Regulation - Topic 645 ].

Statutes - Topic 1782

Interpretation - Intrinsic aids - General - Statement of purpose and objects - [See fourth Trade Regulation - Topic 645 ].

Statutes - Topic 2404

Interpretation - Interpretation of words and phrases - General principles - Words which have received a judicial construction - [See first Trade Regulation - Topic 645 ].

Statutes - Topic 6143

Operation and effect - Effect on earlier statutes - Amendments - Inference from amendment as to state of previous law - [See third Trade Regulation - Topic 645 ].

Trade Regulation - Topic 245

Regulatory bodies - Competition tribunal - Decisions - Standard of review - At issue on this appeal was whether the Competition Tribunal erred in interpreting the words "to the public" within the meaning of s. 74.01(1)(a) of the Competition Act (misleading advertising) - The parties agreed that the construction of "to the public" was a question of law subject to review on a standard of correctness - The respondents put in question the character of the representations - The Federal Court of Appeal determined the appropriate standard of review to be used in constructing the representations, namely, correctness, in the following manner - The decision below was issued by a justice of the Federal Court, sitting as a judicial member of the Tribunal - Under s. 13(1) of the Competition Tribunal Act, an appeal from the Tribunal was treated as if the decision were a judgment of the Federal Court - Therefore, it made more sense to apply the standard used to review decisions of lower courts rather than those used to review administrative tribunals - Accordingly, "Housen", not "Dunsmuir", was determinative of the standard of review - See paragraph 67.

Trade Regulation - Topic 245

Regulatory bodies - Competition tribunal - Decisions - Standard of review - The respondents submitted that the construction of a representation was a question of law and cited a number of cases to support that principle - The appellant attempted to distinguish the cases, noting specifically that the representations in question were written newspaper advertisements - The Federal Court of Appeal accepted the respondents' submission that the construction of representations was a question of law - The appellant offered no principled basis for why the rule should not apply to verbal representations - According to "Housen", questions of law were reviewed on a standard of correctness - See paragraph 69.

Trade Regulation - Topic 245

Regulatory bodies - Competition tribunal - Decisions - Standard of review - The Commissioner of Competition alleged that the respondents made misleading oral representations, in violation of s. 74.01(1)(a) of the Competition Act - The Competition Tribunal found as fact that the alleged representations were made and proceeded to apply the law to that fact, in order to determine whether the representations were misleading and material - On appeal, the respondents raised the issue of whether the Tribunal erred in holding that the representations were misleading - The Federal Court of Appeal determined that the issue involved a question of mixed fact and law - The question of whether the representations were misleading represented a direct application of s. 74.01(1)(a) to the facts of the case - According to "Housen", as there was no extricable principle of law, the Tribunal's finding that the representations were misleading could only be overturned if there were a palpable and overriding error in the Tribunal's decision - See paragraphs 70 and 71.

Trade Regulation - Topic 502

Competition - General - Purpose of Competition Act - [See fourth Trade Regulation - Topic 645 ].

Trade Regulation - Topic 503

Competition - General - Interpretation of Competition Act - [See fourth Trade Regulation - Topic 645 ].

Trade Regulation - Topic 644

Competition - Advertising - Scope of federal legislation - [See fourth Trade Regulation - Topic 645 ].

Trade Regulation - Topic 645

Competition - Advertising - False or misleading advertising - The Commissioner of Competition alleged that the respondents, an employment consulting business, made misleading representations, individually and in private, to a number of potential clients regarding their prospects for success in the job market, in violation of s. 74.01(1)(a) of the Competition Act (misleading advertising to the public) - The Competition Tribunal dismissed the application because of its finding that the misrepresentations were not made "to the public" - The Federal Court of Appeal held that the Tribunal erred - The fact that representations were made in private did not dictate that they were not made to the public - One must look at all the circumstances of the communication - The respondents addressed their advertisements to members of the public at large - The public was invited to seek the respondents' services - Members of the public accepted the invitation and made appointments with the respondents - The content of the representations was not private and was substantially the same for those who sought the respondents' services - The public had access; i.e., it accessed the representations one-at-a-time rather than collectively - The important question was "to whom were the representations made?" - There was ample support for that interpretation in the jurisprudence - See paragraphs 41 to 52.

Trade Regulation - Topic 645

Competition - Advertising - False or misleading advertising - The Commissioner of Competition raised one issue on this appeal; namely, whether the Competition Tribunal erred in interpreting the words "to the public" within the meaning of s. 74.01 of the Competition Act (prohibiting false or misleading representations) - The Tribunal ruled that the deeming provision in s. 74.03(1)(d), partially addressing the meaning of the phrase "to the public", could not be used to interpret s. 74.01(1)(a) - The Federal Court of Appeal held that the deeming provision had no relevance to the present case - The purpose of the deeming provision was to bring specific representations made to only one person, such as when a salesman in a store speaks to a customer, within the meaning of "to the public" - However, in this case, the representations were not made to only one person; rather, similar representations were made to a significant portion of the public - Further, the focus of the deeming provision was on "who" was responsible for having made the representation to the public in situations such as envisioned by s. 74.03(2); i.e., it identified who was responsible when the person who made the representation was outside Canada - See paragraphs 53 to 55.

Trade Regulation - Topic 645

Competition - Advertising - False or misleading advertising - The Competition Tribunal ruled that the deeming provision in s. 74.03(1)(d) of the Competition Act, partially addressing the meaning of the phrase "to the public", could not be used to interpret s. 74.01(1)(a) (prohibiting misleading advertising to the public) - After the Tribunal had rendered its decision, s. 74.03 was amended - The appellant submitted that, since the amendment used the phrase "for greater certainty," it should be considered declaratory of the previous state of the law - The respondents submitted that the amendment was intended to overrule the Tribunal decision, and therefore indicated that Parliament did not initially intend for s. 74.01(1)(a) to apply to the case at bar - The Federal Court of Appeal concluded that the amendments were not helpful in interpreting s. 74.01(1)(a) for the purposes of this case - The use to which the amendments might be put was governed, in part, by s. 45(2) of the Interpretation Act, which stated that no amendment shall be deemed declaratory - The effect of that statement was not to statutorily ban the use of subsequent legislative history as an interpretive aid - Nevertheless, there was good reason to exercise prudence in relying on subsequent legislative history - Of note, United States of America et al. v. Dynar (1997) (S.C.C.) signalled strong disapproval of the use of subsequent legal history to interpret past legislation - See paragraphs 56 to 59.

Trade Regulation - Topic 645

Competition - Advertising - False or misleading advertising - The appellant contended that, when a firm fed misinformation to potential consumers, the proper functioning of the market was necessarily harmed, and the Competition Act was rightly engaged, given its stated goals - The Federal Court of Appeal agreed - The proper focus of analysis in deceptive marketing cases was the consumer - The respondents were wrong to suggest that the interpretation was tantamount to interpreting the Act as a consumer protection statute - Section 1.1 of the Act, setting out its purpose, made it clear that the objective of the deceptive marketing provisions in s. 74.01 was to incent firms to compete based on lower prices and higher quality, in order "to provide consumers with competitive prices and product choices" - Although the deceptive marketing provisions did not list actual harm to competition as an element of the offence, it was presumed that whenever the elements of s. 74.01(1)(a) were made out, there was per se harm to competition - In this case, the evidence from ex-customers made it clear that the respondents' clients were aware that the respondents operated in a competitive marketplace and that they chose the respondents as a result of the misleading representations - See paragraphs 60 to 65.

Trade Regulation - Topic 645

Competition - Advertising - False or misleading advertising - The respondents operated a career consulting business - The Competition Tribunal found that the respondents made misleading representations to potential clients should they use the respondents' services - The respondents put in question the character of the representations, alleging that the Tribunal made errors of law - The Federal Court of Appeal found that the Tribunal was correct in its construction of the representations - The standard to be used in constructing representations was the perspective of an "ordinary citizen" possessing "ordinary reason and intelligence and common sense" - First, the court rejected the respondents' allegation that vague representations could not sustain a prosecution - The Tribunal found that the respondents did guarantee interviews generally with high ranking contacts - It did not matter that the respondents did not detail exactly which contacts prospective clients would meet - Second, the court found "unconvincing" the respondents' argument that the "ordinary person" would have understood that the representation depended on vague descriptions of "future contingent events" beyond the respondents' control - See paragraphs 72 to 75.

Trade Regulation - Topic 645

Competition - Advertising - False or misleading advertising - Premier Career Management Group Corp. (PCMG) was an employment consulting business - It had three divisions, including "PCMG Canada", the focus of this appeal - It provided career coaching services to clients - Roy was the sole director and shareholder of PCMG - The Competition Tribunal found that Roy and PCMG (the respondents) made three types of representations to prospective customers, including the "contacts representation" and the "90 day/good job representation" - The respondents claimed that the Tribunal erred in concluding that those representations were misleading because the Tribunal made no finding of fact that the respondents had an extensive network of contacts or that the typical PCMG client did not find a good job within 90 days - The Federal Court of Appeal held that the Tribunal committed no palpable and overriding error in its analysis - It was implicit from the Tribunal's decision that the respondents represented that they had a network of contacts and that the typical client did not find a job within 90 days as represented - Therefore, the representations were misleading - The Tribunal was under no obligation to state a premise so obviously implied in its conclusion - The respondents' contention that the representations contained obvious and implicit limits was equally not indicative of a palpable and overriding error - See paragraphs 76 to 80.

Words and Phrases

To the public - The Federal Court of Appeal determined the meaning of the phrase "to the public" within the meaning of s. 74.01(1)(a) of the Competition Act, R.S.C. 1985, c. C-34 - See paragraphs 41 to 66.

Cases Noticed:

Apotex Inc. v. Hoffman LaRoche Ltd. et al. (2000), 139 O.A.C. 63; 195 D.L.R.(4th) 244; 2000 CarswellOnt 4773 (C.A.), refd to. [para. 20].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, appld. [para. 34].

University of British Columbia v. Berg, [1993] 2 S.C.R. 353; 152 N.R. 99; 26 B.C.A.C. 241; 44 W.A.C. 241; 102 D.L.R.(4th) 665, folld. [para. 45].

R. v. Kiefer, [1976] 70 D.L.R.(3d) 352 (B.C. Prov. Ct.), affd. [1976] 6 W.W.R. 541 (Vancouver Co. Ct.), consd. [para. 47].

CCH Canadian Ltd. et al. v. Law Society of Upper Canada, [2004] 1 S.C.R. 339; 317 N.R. 107; 2004 SCC 13, consd. [para. 48].

Canadian Wireless Telecommunications Assoc. et al. v. Society of Composers, Authors and Music Publishers of Canada (2008), 371 N.R. 272; 290 D.L.R.(4th) 753; 2008 FCA 6, appld. [para. 49].

Canadian Cable Television Association v. Copyright Board (Can.), [1993] 2 F.C. 138; 151 N.R. 59; 46 C.P.R.(3d) 359 (F.C.A.), consd. [para. 51].

United States of America et al. v. Dynar, [1997] 2 S.C.R. 462; 213 N.R. 321; 101 O.A.C. 321, consd. [para. 58].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 291 D.L.R.(4th) 577; 2008 SCC 9, refd. [para. 67].

R. v. Total Ford Sales Ltd. (1987), 18 C.P.R.(3d) 404 (Ont. Dist. Ct.), refd to. [para. 69].

R. v. Independent Order of Foresters (1989), 32 O.A.C. 278; 26 C.P.R.(3d) 229 (C.A.), refd to. [para. 69].

R. v. International Vacations Ltd., [1980] 33 O.R.(2d) 327; 59 C.C.C.(2d) 557 (C.A.), refd to. [para. 69].

R. v. Kenitex Canada Ltd. (1981), 51 C.P.R.(2d) 103 (Ont. Co. Ct.), refd to. [para. 72].

Maritime Travel Inc. v. Go Travel Direct.Com Inc. (2008), 265 N.S.R.(2d) 369; 848 A.P.R. 369; 2008 NSSC 163, refd to. [para. 73].

Statutes Noticed:

Competition Act, R.S.C. 1985, c. C-34, sect. 1.1 [para. 31]; sect. 74.01(1) [para. 27]; sect. 74.03(1), sect. 74.03(2), sect. 74.03(3) [para. 28]; sect. 74.03(4)(c) [para. 29]; sect. 74.1(1) [para. 32].

Competition Tribunal Act, R.S.C. 1985 (2nd Supp.), c. 19, sect. 13(1), sect. 13(2) [para. 33].

Interpretation Act, R.S.C. 1985, c. I-21, sect. 45(2) [para. 30].

Authors and Works Noticed:

Côté, Pierre-André, Interpretation of Legislation in Canada (3rd Ed. 2000), p. 532 [para. 57].

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), p. 592 [para. 57].

Counsel:

John Syme, for the appellant;

Michael Osborne, Sonny Ingram and Christian Farahat, for the respondent.

Solicitors of Record:

John H. Sims, Q.C., Deputy General of Canada, Ottawa, Ontario, for the appellant;

Affleck Greene McMurtry LLP, Toronto, Ontario, for the respondent.

This appeal was heard at Toronto, Ontario, on September 16, 2009, by Létourneau, Sexton and Layden-Stevenson, JJ.A., of the Federal Court of Appeal. Sexton, J.A., delivered the following judgment and reasons for judgment of the court, on October 15, 2009.