No More Claims to be “Canada’s Most Reliable Network” for Rogers Communications

Rogers Communications Inc (Rogers) has been ordered by the Supreme Court of British Columbia to stop claiming that it is “Canada’s Most Reliable Network“. The decision followed an application by Telus Communications Co (Telus) for an interlocutory injunction in the context of a damages claim under the Competition Act (Act). Telus alleged that Rogers breached section 52(1) of the Act by representing that it provided Canada’s most reliable wireless network in its advertisements, and sought an order restraining Rogers from continuing this claim. According to the Court, Rogers had made significant improvements to its network to increase data transmission speed over the years. Following a 2007 advertising campaign claiming its network to be Canada’s fastest and most reliable (buttressed, at that time, by comparative test results), Rogers developed a new “Canada’s Most Reliable Network” campaign for November and December 2009. In November 2009, Telus launched a new national wireless network that it constructed jointly with Bell Canada using the same technology as Rogers. Telus argued that it has since overcome the competitive advantage enjoyed by Rogers, and that therefore it was false, or at least misleading, for Rogers to continue its current advertising claim. The Court found that Telus had established a strong case. Even though technology has changed, Rogers maintained the same representation and gave the general impression that its network was more reliable than any other network. Rogers must be taken to have known, at least since Telus’s new network was launched, said the Court, that continued use of the representation would be misleading. An interesting aspect of the decision was the Court’s finding that, although Rogers’s campaign was designed before Telus launched its new network, Rogers was a “highly sophisticated organization” and therefore must have known “what was coming, if not exactly when”, given that technological change in this industry is the norm. [Note: In a late-breaking development, it was reported in the online edition of The Globe and Mail on December 1, 2009 that Rogers has struck back against Bell Canada by launching its own suit in the BC Supreme Court alleging that the advertising used to describe the newly-launched Telus/Bell Canada network was itself false and misleading when it referred to their new venture as “the largest, fastest, and most reliable network”.] For the full text of the BC Supreme Court’s decision, Telus Communications Co v Rogers Communications Inc, 2009 BCSC 1610, visit: http://www.courts.gov.bc.ca/jdb-txt/SC/09/16/2009BCSC1610.htm For news releases on the decision, see http://tinyurl.com/yznap69; and http://www.financialpost.com/story.html?id=2263461 Summary by: Janet Chong