Court slams misleading pitch
Judges uphold ruling about an ad that fooled a Quebec man into believing he won $ 800,000
It looked like a letter telling a man he’d won a sweepstake. It was really a pitch to buy a magazine. Now Canada’s top court says first impressions count, and has awarded the man damages.
OTTAWA — Canada’s top court has sent a strong message to businesses not to prey on “credulous or inexperienced” consumers, siding Tuesday with a Montreal man who was misled into believing he had won a sweepstake.
The Supreme Court of Canada found that a Time letter trying to sell subscriptions that appeared to tell Jean- Marc Richard he’d won more than $ 800,000 breached Quebec’s Consumer Protection Act.
The Supreme Court upheld a lower court decision that found the layout of the advertisement and sentences in bold print such as “Jean- Marc Richard has won a cash prize” gave a false impression, despite a disclaimer in small print.
The court said the first impression of a document is as important as what might be hiding in the fine print.
Advertisements must be considered, the court said, “from the perspective of the average consumer, who is credulous and inexperienced and takes no more than ordinary care to observe that which is staring him or her in the face upon first entering into contact with an entire advertisement.”
The decision is expected to have implications outside Quebec, as similar law exists in other provinces, said lawyer Hubert Sibre, who represented Richard.
“Definitely, there is a message in here that should be heard by everyone across the country,” the lawyer said.
Richard’s fight with Time began in 1999 when he received an English notification from the company in the mail that led him to believe he’d won the sweepstake.
“Our sweepstakes results are now final: Mr. Jean Marc Richard has won a cash prize of $ 833,337.00,” it said at the top.
Similar exclamatory statements were repeated in the letter in big, bold uppercase letters.
The back of the letter told Richard he would qualify for a $ 100,000 bonus prize if he validated his entry in five days.
What he missed was the fine print above each statement: conditional clauses that began with the qualifier “if you have and return the Grand Prize winning entry in time.”
His actual odds of winning were one in 120 million.
The letter came along with an offer for a discount magazine subscription.
Richard filled out the form, signed up for a subscription and mailed it off, awaiting the cheque that the letter said was “on its way.”
When the magazines started arriving but his winnings didn’t, Richard sued for the prize amount plus the $ 100,000 bonus.
In its decision Tuesday, the top court laid the blame squarely at the feet of those behind the sweepstake.
“The document’s strange collection of affirmations and restrictions is not clear or intelligible enough to dispel the general impression conveyed by the most prominent sentences,” the judgment said.
“On the contrary, it is highly likely that the average consumer would conclude that the appellant held the winning entry and only had to return the reply coupon to initiate the claim process.”
“To meet the objectives of the [ Consumer Protection Act], the courts view the average consumer as someone who is not particularly experienced at detecting the falsehoods or subtleties found in commercial representations,” the court ruled in a 100- page judgment.
Sibre called the judgment a huge victory for consumers.
“I believe it’s going to be very helpful for every consumer, whether they’re in small claims court or any type of court,” Sibre said.
“I do think that any businesses doing any type of marketing material should take notice of this decision and make sure that when they present anything to a consumer in Quebec that they consider not only what they wrote but also the general impression of what they’re providing the consumer with.”