Have you ever bought a product on the Internet and when you made the payment, it was not the price that was displayed? Or was there a difference in the quantity or quality of the product?
If so, are you protected against these types of misleading advertising and what are your possible remedies against the merchant who misled you?
Me Lambert looks at these issues while explaining your rights and protections related to misrepresentation and misleading advertising.
The law concerning misrepresentation
The warranty obligation that the Civil Code of Québec imposes on sellers in article 1726 is mainly limited to hidden defects and the quality of the product sold.
However, the Consumer Protection Act allows for the tightening and addition of quality standards that merchants are now required to meet in order to provide greater protection for buyers.
Among other things, several provisions are included in this law to regulate the way in which a product is promoted in order to prevent consumers, even the most sophisticated, from being victims of misrepresentation.
First, let us look at section 219 of the Consumer Protection Act. This happens to be the general statement prohibiting any merchant, manufacturer or advertiser from making a false representation of a product to a customer. This article provides that:
No merchant, manufacturer or advertiser may, by any means whatsoever, make a false or misleading representation to a consumer.
According to the Office de la protection du consommateur, false or misleading advertising can take different forms. For example, it can be as simple as omitting important information or statistics or distorting them to your advantage. Claiming false status is also considered misrepresentation. A merchant offering to repair your car cannot therefore falsely claim that he is a mechanic.
Obviously, using an image that does not represent the product being advertised is also a fault on the part of the merchant or advertiser.
In addition, section 220 of the Act prohibits persons advertising a product or service from making false promises. That is, traders do not have the right to falsely advertise that a product will bring you a particular benefit such as a financial benefit or a good done for health. This article provides that:
No trader, manufacturer or advertiser may falsely, by any means whatsoever:
(a) attribute a particular benefit to a property or service;(b) claim that a pecuniary benefit will result from the acquisition or use of a good or service;(c) claim that the acquisition or use of a good or service confers or ensures a right, remedy or obligation.
Other provisions list more precisely the prohibited practices in the field of advertising: they are found, inter alia, in sections 221 and 222 of the same Act.
Article 221 prevents merchants from falsely:
- claim that a good or service contains a particular part, component or ingredient;
- assign a dimension, weight, measure or volume to an asset;
- claim that a good or service meets a specific standard;
- indicate the category, type, model or year of manufacture of a good;
- claim that property is new, refurbished or used to a specified degree;
- claim that a good or service has a particular history or has had a particular use;
- assign a certain performance characteristic to a good or service.
Finally, Article 222 prevents them, among other things, from lying about the method of manufacture of a good and the quantity of goods available to them. Nor can they depreciate a product offered by a competing merchant.
Judicial remedies and case law
As a consumer, you have several options that allow you to enforce your rights if this has not been done by the merchant. Indeed, section 272 of the Consumer Protection Act allows you to request the reduction of your obligation, the termination of the sales or service contract or to cancel or terminate it.
You will also be able to claim compensation for the damage caused by the merchant and in some cases it will even be possible to claim punitive damages.
Misleading representation of a displayed price
In another case, Sears Canada had put up for sale, on their website, a barbecue for the price of $ 69.99. Faced with this windfall, several people, including Mr. Therrien, decided to order this barbecue. Subsequently, Sears acknowledged that the company had made a mistake and required buyers to pay the full price or buy another barbecue.
Mr. Therrien therefore sued the retailer because it had not complied with the standards set out in section 219 of the Consumer Protection and Consumer Protection Act. Court ruled in his favour by requiring Sears to reimburse the plaintiff for the gain that the plaintiff was deprived of.
Misrepresentation of a particular advantage
In 2012, Mazda launched an advertising campaign to tout the merits of a new technology that would allow the owner of one of their car to save fuel. However, Ms. Grand-Maison quickly realized that she was not saving as much as the car manufacturer had promised her.
This misrepresentation resulted in a class action lawsuit where the Court ordered Mazda to compensate the members for the gains they were deprived of. Mazda also had to pay each of the members $500 in punitive damages as punishment.
In a similar case, a heat pump retailer falsely promised that its heat pumps saved homeowners energy. In a judgment of the Court of Appeal, it was found that this violated section 220 of the Consumer Protection Act and the company had to compensate the plaintiff, in addition to reimbursing the heat pump sold.
Misrepresentation of food
A few years ago, the dairy company Danone launched an advertising campaign to promote the health benefits that their probiotic yogurts had. However, studies have shown that the advertised benefits represent false advertising and there has been a class action lawsuit against Danone.
The Tribunal found that the company’s allegations violated sections 219 and 220 of the Consumer Protection Act and Danone was ordered to pay $1.2 million.
Remember that if you are a victim of misrepresentation about a product or service, you may not be the only one and that class action may be possible. Do not hesitate to contact our firm for more information.
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