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21 CANADIANLAWYERMAG.COM/INHOUSE MAY 2015 In that case, a Quebec resident believed he had won more than $800,000 based on what was written in a sweepstakes contest letter sent to him by Time magazine. He returned the entry form and subscribed to the magazine for two years, thinking this would entitle him to a free camera and photo album, in addition to the prize money. After speaking to representatives of the magazine, he was told the forms were only an invitation to enter the sweepstakes contest. The Supreme Court concluded that it must follow the spirit of Quebec's Con- sumer Protection Act, when interpreting advertising that is alleged to be mislead- ing or false. "To meet the objectives of the C.P.A., the courts views the average con- sumer as someone who is not particularly experienced at detecting the falsehoods or subtleties found in commercial represen- tations," wrote justices Thomas Cromwell and Louis LeBel for the court. "The words 'credulous and inexperienced' therefore describe the average consumer for the purposes of the C.P.A. This description of the average consumer is consistent with the legislature's intention to protect vulnerable persons from the dangers of certain advertising techniques," they added. The Supreme Court ordered Time to pay $16,000 in damages to Jean-Marc Richard. Whether this standard applies outside of Quebec is still a matter of debate. A year after the decision in Richard, an Ontario Superior Court judge was asked to determine this issue in the context of an action brought by the federal commissioner of competition over claims made by wireless providers about the number of dropped calls. "The consumer perspective in this case is that of a credulous and technically inexperienced consumer of wireless services," wrote Justice Frank Marrocco in Canada (Competition Bureau) v. Chatr Wireless Inc. Even in adopting that standard, Marrocco noted that the federal Competition Act has a different purpose than that of Quebec's consumer protection laws. In B.C., lawyers for plaintiffs "have urged the courts to adopt the Richard principles," says Reinertson. In response, "defence counsel are arguing that the [B.C. consumer] legislation has to be applied with common sense," she adds. The credulous consumer standard has not generally been applied in common law jurisdictions, although it "is a fi ght that may still be played out," says Lockwood. In the area of food product liability and litigation, Quebec is distinct, says Theall. "It is the most pro-consumer province in the country," he says. In the Vitaminwater proceeding in B.C., Verhoeven was not required to address what the consumer standard might be. Still, he did not seem to accept that a naïve customer should be the benchmark. "A source of in- formation may be pivotal to one consumer's decision but may be immaterial to another consumer's choice," wrote Verhoeven. "I suspect many consumers would often be motivated to purchase the product largely for reasons of situational need and conve- nience (ie. thirst and convenient availability of the product). The circumstances of each and every consumer transaction are end- lessly variable." IH A new legal powerhouse. Highly regarded litigators Marie Henein and Scott Hutchison are Fellows of the American College of Trial Lawyers, members of the Supreme Court Advocacy Institute and authors of frequently cited texts. They have been recognized for their excellence in trial and appellate advocacy, appearing frequently at the Supreme Court of Canada and the Ontario Court of Appeal. Strategic and creative thinking. Their entire team of outstanding lawyers offers experience in criminal, quasi-criminal, regulatory and cross-border litigation. More experience. More defence. hhllp.ca P OW E R I N E X P E R I E N C E . HeneinHutchison_CL_Feb_15.indd 1 2015-01-14 1:44 PM

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