Advertising – Can they really say that?! Advertising self-regulation in Canada – Part 3

Posted on by Mary G. Griffith

Although advertisements in five regulated categories (see my last blog) need to be pre-cleared before they can be aired in Canada, you may still see ads in non-broadcast media (such as print, internet or out-of-home), in other categories, or even in categories that have received preclearance, that you feel are not appropriate in some way. It is important to remember that pre-clearance of an ad is done against the relevant regulatory framework. This is not necessarily the same as what is covered by the clauses of the Canadian Code of Advertising Standards (the “Code”). In fact, even if an advertisement is given pre-clearance it may be given a “Code warning” indicating that it may attract complaints under the Code.

So as an individual consumer, how and to whom do you complain if you see an ad that you feel is inaccurate, or inappropriate in some way?

While complaints about advertising can be made to the Competition Bureau, or under a number of other statutes, this blog will deal only with the self-regulatory avenue available to a consumer for advertisements that they feel contravene the Code. The process of submitting a complaint to Advertising Standards Canada (ASC) is very straightforward and can be completed on-line, by letter or by fax. ASC initially evaluates complaints under the provisions of the Code, and if it determines that there may be a Code infraction then the advertiser will be notified.

In the case of complaints relating to clauses 10 (Safety) or 19 (Unacceptable Depictions and Portrayals) the advertiser is asked to respond directly to the complainant (if they have agreed to be identified) or through ASC (if the complainant wants to remain anonymous). If the complaint is not satisfied with the response, and ASC believes that there is still an issue under the Code, then the complaint will be referred to the Standards Council (the “Council”) which is a volunteer body comprised of members of industry and the public.

In the case of complaints regarding any other Code clauses, the advertiser will be asked to respond directly to ASC and the complaint will be adjudicated by the Council. Council decisions are by a majority vote. Both the advertiser and the complainant will be notified of the Council’s decision. If it is determined that a violation of the Code has occurred it will be requested that the advertiser appropriately amend or remove the advertising without unreasonable delay.

Both the complainant and the advertiser have seven working days to appeal the decision, however the advertiser must undertake to withdraw the advertisement in question until the appeal decision is rendered.

If an advertiser fails to voluntarily comply with the decision of Council, ASC will advise exhibiting media of the advertiser’s failure to co-operate and request media’s support in no longer exhibiting the advertising in question; and may make public the fact that both the advertiser and specific advertisement have been found to violate the Code.

Unlike ASC’s complaint procedure between advertisers which is confidential, consumer complaints under the Code are made public and ASC regularly publishes reports on consumers’ complaints to ASC about advertising.

The report has two sections: the first provides details of the complaints that were upheld by the Council and identifies the advertiser and specific advertisement involved; the second summarizes, without naming the advertiser, consumer complaints upheld by Council about advertisements dealt with appropriately by the advertiser. This would include advertisements that, after notification by ASC of a complaint, were amended or withdrawn before the matter was sent to Council for review and decision.

These reports can help inform an advertiser of both ASC’s and the Council’s interpretation of Code. However, as always it is good practice for an advertiser, or their agency, to have any potential creative reviewed by a knowledgeable advertising and marketing lawyer before it is produced in order to ensure that it is compliant with all relevant legal requirements, and the Code.

So You Want to Appeal…(Part 2): Appealing a decision from Small Claims Court

Posted on by Megan E. Fife

Following Part 1 of this series, which outlined the basics about appeals from Ontario court cases, I will now delve deeper into the various courts, avenues of appeals and options for appellants.

In this post, I start the discussion about rules and procedures of appealing a decision from the Ontario Small Claims Court (“Small Claim”).

First and foremost, appeals from Small Claims are heard by the Divisional Court and your claim must be for $2,500.00 or more in order to be permitted an appeal.  If you meet these criteria, you will need to serve the Respondent(s) (Plaintiff(s) from the Small Claims trial) a Notice of Appeal (Form 61A) and Appellant’s Certificate Respecting Evidence (Form 61C) within 30 days of the date of the original Small Claims order.  When appealing from Small Claims, you do not need leave to appeal (i.e. permission from the court).

NOTE: You must be very careful when determining your 30-day deadline.  These 30 days begin on the date that the order was signed by the Small Claims judge, not the date that you may have received the order (although it may be the same day).  Be sure to double check the date written on the order itself, and begin your count from there.

You will then have another 10 days to file the Notice of Appeal and Appellant’s Certificate Respecting Evidence with the Divisional Court; however I would recommend filing as soon as you’ve completed service, to ensure that this second deadline doesn’t get missed.

Notice of Appeal – this document will describe the relief you are seeking (for example, dismissal of the original plaintiff’s action and costs awarded to you throughout); the grounds of your appeal (this should be a list of the errors in fact or law you believe the Small Claims judge made, justifying a review by the appellate court); and the basis for the Divisional Court’s jurisdiction (list the legislation that allows you to appeal to the Divisional Court from Small Claims, note that leave to appeal is not required, and that the order being appealed is a final order).

Appellant’s Certificate Respecting Evidence – this simply lists the portions of evidence from the original hearing that you, as the appellant, consider necessary for the appeal.  Note that the appellant judge doesn’t want to review the trial evidence in full unless absolutely necessary, so be thorough in your review and choose only the evidence that is required to support your arguments (i.e. grounds for appeal, as described in the Notice of Appeal)

NOTE: If you believe that the oral testimony of any of the witnesses from the original trial will be helpful to your appeal, you will need to order transcripts.  To do this, you need to get a Certificate of Ordering a Transcript for Appeal from the Small Claims Court that heard the original hearing and file a copy with the Divisional Court within 30 days of the date you filed your Notice of Appeal.

The next step is called perfecting your appeal.  If you are not ordering transcripts, this must be done within 30 days of the date you filed your Notice of Appeal.  If you did order transcripts, this must be done within 60 days of receiving notice that the evidence requested has been transcribed.

In order to perfect your appeal, you will need to create an appeal book and compendium (see Rule 61.10), an exhibit book (see Rule 61.10.1), a printed copy AND electronic copy of the transcripts (if applicable), an appellant’s factum, a book of authorities and a certificate of perfection.  These make up the body of your argument and supporting evidence, and are the basis upon which the respondent will reply to your appeal and the Divisional Court judge(s) will evaluate your claim.

Next time, I will go into more detail about the documents required to perfect an appeal, as well as complete a brief review of what do you if you are the Respondent in an appeal from Small Claims to Divisional Court.

In the meantime, some helpful references to note include Rule 61 of the Rules of Civil Procedure, the Ministry of the Attorney General’s “Guide to Appeals in Divisional Court” and, as noted in Part 1, the Court of Appeal for Ontario’s informative website (http://www.ontariocourts.ca/coa/en/).  These resources should all be used in combination with the advice of a litigation lawyer, if you are considering an appeal from Small Claims.

When Does Child Support End?

Posted on by Michael A. Chambers

There is a widely held myth by many that the obligation to pay child support ends once a child reaches the age of 18, the age of majority. Not so. It, in virtually all cases, continues much beyond that age, and if a Court Order or separation agreement is silent on the date when child support ends, it almost certainly will not come to an end at age 18 and will continue beyond that age with no certainty with respect to when it will end.

Under the Divorce Act, which covers the situation of most couples who were married, the support paying spouse is required to pay child support for as long as a child is a “child of the marriage,” a special phrase which the Divorce Act defines as being a child who is either,

  1. A child under the age of majority (18 in Ontario) who has not withdrawn from his or her parent’s charge (in most cases this means, lives at home and is going to school); or
  2. A child over the age of majority but is unable by reason of illness, disability or other cause, to withdraw from his or her parent’s charge or to obtain the necessaries of life [once again in most cases this means a child who is at home (or away from home to attend school but otherwise lives at home) and is going to school]. “Other cause” in other words is the child being a full-time student.

Under the Family Law Act which covers the situation, in Ontario, of couples who were not married but have children, the support paying spouse is required to pay child support for as long as the child is not married and is:

  1. A minor (a child under the age of 18 – for 16 and 17 year olds there is an additional qualifier that the child has not withdrawn from parental control); or
  2. Is 18 years of age or older and is enrolled in a full-time program of education, and has not withdrawn from parental control.

Under both the Divorce Act and the Family Law Act it is clear that child support definitely does not end for a child who turns 18 and is still in school. Beyond that, neither piece of legislation states just when child support ends for a child who continues his or her education. It was for a long time thought that child support should end when the child obtains his or her first post-secondary school degree or diploma, based on the thinking that the child should be then well able to enter the job market and secure work. However, that reality has well since ended and most young people are now required to obtain at least a second degree or diploma in order to make themselves competitive in the current job market. There is no certainty therefore, absent a specific age included in a Court Order or separation agreement, just when child support will end. For a child who remains in school, it will certainly not end at age 18. That much is clear.

The parents of a child can make things clear for themselves, whether as a child support payor or a child support recipient, by including in their separation agreement and/or Court Order that child support will end at a specific age even if a child wishes to stay in college or university and pursue further education. A commonly chosen age for this purpose is age 22 or 23. It could be an older age or even a younger age, although if a younger age it may not cover the child to the end of his or her first degree or diploma making it vulnerable to being overturned by the court.

Lesson to be learned: it is best, if not essential for purposes of certainty, that in one’s separation agreement and/or Court Order the circumstances, and age, that will mean an end to child support be expressly set out in detail in the agreement or order. To ensure they are, and are correctly expressed, one is well advised to seek the assistance of a lawyer of your choice who is experienced in family law matters.