CANADA Law and Practice Contributed by: Martha Harrison, Nikiforos Latrou, Eugenia (Evie) Bouras and Marissa Caldwell, McCarthy Tétrault
• (c) the supplier has not sold a substantial volume of, or offered to sell, the relevant product at or above the Ordinary Selling Price for a reasonable time prior to or immediately after the representation is made. In its guidance, the Competition Bureau has estab - lished parameters to govern part (c) of the test above, as follows: • volume test – the Competition Bureau takes the position that the advertised Ordinary Selling Price must have been the price at which the product was sold for more than 50% of sales of the product within the 12-month period prior to the claim being made; and • time test – the Competition Bureau takes the posi - tion that a “reasonable amount of time” means that the product in question must have been advertised at the Ordinary Selling Price for at least 50% of the time in the six months prior to the representation being made. Further, consumer protection statutes in most prov - inces in Canada (eg, the Consumer Protection Act in Québec) also prohibit false and misleading represen - tations about the price or regular price of products sold to consumers. 7.5 Automatic Renewal/Continuous Service Offers Automatic renewals and continuous service offers are regulated provincially under consumer protection stat - utes. Generally, recurring billing is permitted provided that the frequency and pricing are disclosed to the consumer in a clear and prominent manner. Failure to do so may result in the consumer claiming that they received unsolicited goods or services – an unfair practice that allows them to cancel the contract and, if a refund is not issued, pursue a private right of action. Additionally, any material change to the price or nature of the goods or services may be treated as unsolicited unless such changes are explicitly contemplated in the subscription terms and advance notice is provided before the new charges apply. Certain categories of contracts, such as those involving personal develop - ment services (eg, gym memberships, educational
programmes or health-related courses) are subject to stricter rules and a mandatory cooling-off period, and are generally prohibited from automatic renewal. In Québec, specific restrictions apply to distance con - tracts (eg, cellphone services), which typically can - not be automatically renewed for terms exceeding 60 days.
8. Artificial Intelligence 8.1 AI and Advertising Content
No rules or guidance currently apply to the use of artificial intelligence in connection with advertis - ing content development. The Competition Bureau recently completed a consultation on artificial intel - ligence’s impact on competition in Canada, which encompassed issues related to false or misleading representations and testimonials. Guidance and/or amendments to the Competition Act are expected to result from the consultation. 8.2 AI-Related Claims There are no special rules or guidance as relate to arti - ficial intelligence; these types of claims are governed by the same rules as other claims – primarily, that they cannot be false or misleading. 8.3 Chatbots There are no special rules or guidance related to chat - bots, though this has been addressed by the courts. In Moffatt v Air Canada , 2024 BCCRT 149, an airline was found liable for negligent misrepresentations made by a chatbot available on its website. 9. Web 3.0 9.1 Cryptocurrency and Non-Fungible Tokens (NFTs) In Canada, the advertising, marketing and sale of cryptocurrency and non-fungible tokens (NFTs) are subject to regulatory oversight when these assets fall within the definition of a “security” under applicable provincial securities laws.
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