Deceptive Marketing Law After Cineplex

Abstract

In Canada (Commissioner of Competition) v Cineplex, the Competition Tribunal considered two major deceptive marketing law issues: the legal standard when applying the general impression test, and how section 74.01(1.1) (the drip pricing provision) is interpreted and applied. The decision provided guidance to these issues but left many more questions unanswered. We surveyed questions related to (1) the method of constructing the ordinary citizen legal standard adopted by the Tribunal, (2) the specific principles used in interpreting and applying section 74.01 and its relationship to other provisions in the Competition Act, and (3) the likelihood of restitution orders as remedies in future cases. Guided by the Tribunal’s reasons in Cineplex, the purposes of competition law, the underlying behavioural economic principles of deceptive marketing law, and approaches to similar issues in foreign jurisdictions, we offer potential directions for the law in answering certain questions we have identified.