Thank you.
In addition to the concerns raised by Mr. Fraser, we have two concerns that relate specifically to the way in which Bill C-27 proposes to amend the Competition Act.
The first concern is, in essence, a concern about a single word, or at least a single phrase. It's only a single phrase, but we think you will agree that it's a very important one.
At clause 71 of the bill, added to the Competition Act is a new proposed section that provides for a criminal false and misleading representation offence that applies specifically to electronic messages. There's already a general false and misleading advertising provision in the Competition Act. This provides a very specific one.
This new proposed section would specifically prohibit sending an electronic message knowingly and recklessly with one or more of the following three features: either misleading or false header information, that is sender or subject matter information; content within the message that is false or misleading; or locator information that's false or misleading.
Our concern is that only in respect of one of those features is the important phrase “in a material respect” included. In all other prohibitions for false and misleading representations in the Competition Act, there is a qualifier.
The false or misleading representation has to be in a material respect. There is an important reason for that. We all make mistakes, and in fact, many people in business make what are actually false representations but which ought not to be pursued for false or misleading representations under the Competition Act. I can give you a very simple example.
Last week I sat on an expert panel at a conference where we considered environmental product marketing claims, including the following claim: “Save the planet, use our biodegradable shampoo”. We talked at length about this claim. One of the issues that were not raised was that “save the planet”, although it's obviously false in respect of the shampoo, was problematic under the Competition Act. It's considered playful puffery or hyperbole. Is it false? Yes, you're not going to save the planet by using this shampoo. Is it actionable under the Competition Act as a criminal or civilly reviewable offence? Not under the general provision. Would it be if it were included in the header of an e-mail? Under Bill C-27, arguably it would be. That's our first issue.
The second issue concerns the proposed lowering of the threshold that must be met under the Competition Act for a temporary order to be issued by a court in respect of any allegedly reviewable conduct under the act. That includes not just misleading advertising, but it includes tied selling, exclusive dealing, and a number of other pieces of conduct that businesses may or may not be engaged in.
Bill C-27, perhaps unaware to many on the committee, makes a fundamental change to the standard that must be observed by a judge in deciding whether to issue a temporary order to stop a representation from being made. It will not only apply to electronic message representations, but it will apply in respect of all of the conduct under the Competition Act to which it currently speaks. This is an over-breadth that, in our view, defies any real rational connection to this legislation.
Thanks very much.