BC Court orders Rogers to stop "most reliable" ad campaign

On November 24, 2009, the British Columbia Supreme Court granted an interlocutory injunction restraining Rogers Communications from advertising its wireless network using the claim that Rogers provides "Canada's Most Reliable Network". 

In 2007, Rogers began advertising its network as both Canada's "fastest" and Canada's "most reliable network", based on comparative testing of its HSPA network against its competitors' services, which at the time were based on EVDO technology with similar voice transmission quality, but slower peak data transmission speeds. 

In early November 2009, Rogers launched a new ad campaign focusing its claim on "Canada's Most Reliable Network". Many, but not all, Rogers advertisements included a fine-print disclaimer explaining that "most reliable network" referred to call clarity, dropped voice calls, and data session completion rates within the Rogers HSPA footprint, compared to its competitors' EVDO networks. The disclaimer also noted that the Rogers HSPA network was not available in all areas.

Very shortly after the launch of the new Rogers campaign, Telus Communications launched its new HSPA network, and sought an injunction against Rogers for the statements made in its advertisements. Telus argued that the Rogers network is not faster or more reliable than the new Telus network, and that consequently Rogers was in breach of s. 52(1) of the Competition Act, which prohibits the use of making a false or misleading representation to the public for the purposes of promoting a product. 

In framing the test for granting an interlocutory injunction, the Court first decided whether there was a triable issue. The issue was framed as whether Rogers' representation is now misleading in a material respect. Even though the representation was based on a comparison that is now irrelevant, most consumers would not understand the fine print. Thus, the impression is that Rogers' network is more reliable than any other network in Canada. From the evidence, it was apparent that the Telus and Rogers networks are now at least equivalent, and the technological advantage that allowed Rogers to claim it had the most reliable network has disappeared. 

The Court then considered irreparable harm together with the balance of convenience, stating that whether the issues are treated separately or together, the picture must be viewed as a whole.  Both parties would suffer losses that would be extremely difficult to quantify if the other side enjoys ultimate success, amounting to irreparable harm. Given this equality, the strength of Telus' case becomes relevant. Further, because Telus' case is strong, public policy favoured restraining the representation. 

The Court would not go so far as to require Rogers to withdraw from public circulation advertising or other materials containing the statement at issue, on the basis that such an order would require court supervision that the Court would be unable to undertake.  

Rogers has since appealed the decision and has started a similar lawsuit against BCE in the same Court. On December 15, 2009, Rogers successfully obtained an injunction, forcing BCE to remove its advertisements claiming to be the “most reliable” wireless network. Under the terms of the injunction, BCE was required to start removing its bulk advertisements by December 22 and it must remove all the material by January 22. Interestingly, the injunction does not require BCE to take down its advertisements claiming to be the “largest and fastest” and “best and most powerful”.

Telus Communications Company v. Rogers Communications Inc., 2009 BCSC 1610

prepared by Thomas Kurys

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