R. v. Multitech Warehouse, (1992) 119 N.S.R.(2d) 52 (ProvCt)

• Judge: Gibson, P.C.J.
• Court: Provincial Court of Nova Scotia (Canada)
• Case Date: December 21, 1992
• Jurisdiction: Nova Scotia
• Citations: (1992), 119 N.S.R.(2d) 52 (ProvCt)

R. v. Multitech Warehouse (1992), 119 N.S.R.(2d) 52 (ProvCt);

  330 A.P.R. 52

MLB headnote and full text

Her Majesty The Queen (informant) v. Multitech Warehouse Direct Inc. (defendant)

(152467 & 152468)

Indexed As: R. v. Multitech Warehouse Direct Inc.

Nova Scotia Provincial Court

Gibson, P.C.J.

December 21, 1992.

Summary:

An accused was charged with two counts of misleading advertising contrary to s. 52(1)(a) and 52(5)(b) of the federal Compe­tition Act.

The Nova Scotia Provincial Court found the accused not guilty.

Trade Regulation - Topic 645

Competition - Advertising - False or mis­leading advertising - Multitech pro­moted merchandise by offering free flights to tropical destinations, subject to certain conditions, restrictions and requirements - One requirement was the purchase of luxury accommodations for a minimum of 14 nights - Multitech placed a large ad­vertisement with the following disclaimer at the bottom: " * with purchase of accom­modations some restrictions apply" - The Nova Scotia Provincial Court concluded that the advertisement was not false or misleading in a material respect - The advertisement "... sufficiently drew the attention of the average consumer to the requirement of purchasing accommoda­tions as well as to the existence of other restric­tions and conditions, which, on a proper construction, would be seen to apply to both the airfare and accommoda­tions" - See paragraphs 21 to 24.

Trade Regulation - Topic 645

Competition - Advertising - False or mis­leading advertising - Multitech pro­moted merchandise by offering free flights to tropical destinations, subject to certain conditions, restrictions and requirements - One requirement was the purchase of luxury accommodations for a minimum of 14 nights - Multitech's vice-president prepared a large advertisement with the following disclaimer: " * luxury accommo­dations not included, some restrictions apply" - Multitech's co-owner changed the dis­claimer to eliminate con­fusion - The change did not make the first publication - Multitech placed infor­mation packets in its stores detailing the terms of the pro­mo­tion - The co-owner was avail­able to answer questions - The Nova Scotia Prov­incial Court held that although the adver­tisement was misleading in a material respect, Multitech was not guilty by rea­son of the defence of due diligence - See paragraphs 25 to 45.

Trade Regulation - Topic 4306

Retailers - Licensing and regulation - Adver­tising - What constitutes misleading ad­vertising - [See both Trade Regulation - Topic 645 ].

Trade Regulation - Topic 4308

Retailers - Licensing and regulation - Adver­tising - Misleading advertising - Evidence and proof - An accused was charged with misleading advertising - There was no evidence that any member of the public was misled or deceived - The Nova Scotia Provincial Court stated "[t]he court is required, in such cases, to exam­ine the advertisement and apply a stan­dard based upon the type of consumer to which the advertisement is directed. This deter­mina­tion is the foundation for a proper con­struction to be placed upon the adver­tise­ment" - See paragraphs 16 to 18.

Trade Regulation - Topic 4314

Retailers - Licensing and regulation - Adver­tising - Defences - [See second Trade Regulation - Topic 645 ].

Trade Regulation - Topic 4317

Retailers - Licensing and regulation - Ad­ver­tising - Offences - Mens rea - Whether required - The Nova Scotia Provincial Court stated that misleading advertising under s. 52(1)(a) and 52(5)(b) were strict liability offences - "Thus the burden on the Crown is simply to prove beyond a reasonable doubt the actus reus. There is no need for the Crown to prove intent to deceive or mislead." - See para­graph 16.

Cases Noticed:

R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299; 21 N.R. 295; 40 C.C.C.(2d) 353; 85 D.L.R.(3d) 161; 3 C.R.(3d) 30, refd to. [para. 16].

R. v. City of Sault Ste. Marie - see R. v. Sault Ste. Marie (City).

R. v. International Vacations Ltd. (1980), 124 D.L.R.(3d) 319 (Ont. C.A.), consd. [para. 19].

R. v. Rust-Oleum (Canada) Ltd. (1978), 42 C.P.R.(2d) 193 (Ont. Prov. Ct.), refd to. [para. 21].

R. v. Wholesale Travel Group Inc. and Chedore (1991), 130 N.R. 1; 49 O.A.C. 161; 67 C.C.C. 193 (S.C.C.), refd to. [para. 28].

Statutes Noticed:

Competition Act, R.S.C. 1985, c. C-34, sect. 52 [para. 3]; sect. 52(1)(a) [para. 2]; sect. 52(5)(b) [para. 16]; sect. 52(4) [para. 19]; sect. 60(2)(a), sect. 60(2)(b) [paras. 3, 27].

Counsel:

Paula R. Taylor, for the Crown;

Thomas J. Dunne, for the accused.

This case was heard on October 19 and 20, 1992, at Dartmouth, Nova Scotia, before Gibson, P.C.J., of the Nova Scotia Provincial Court, who delivered judgment on Decem­ber 21, 1992.