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Court Decides Against Injunction for Misleading Internet Speed
In a recent decision by the Ontario Superior of Justice, Bell Canada’s request for an interlocutory injunction against Rogers Communications (“Rogers”) was dismissed because the circumstances of the case had changed since its Notice of Motion was first filed. Although the Court found that there were a number of problems with Rogers’ misrepresentations that could lead a trier to conclude that they were materially false or misleading, the Court ultimately found that Bell had not met the burden of establishing the three-part test for an interlocutory injunction as established in RJR MacDonald.
On June 8, 2009, Rogers launched a campaign, entitled “Check Your Speed.” The campaign, which included both direct mail and website advertisements, were aimed to inform customers that the Internet services they received from rival companies were not up to par. The campaign attempted to do the following: (1) to assert that customers were not getting the Internet services they were paying for; (2) to invite customers to test their connection speed with an impartial third party; and (3) to urge customers to switch to Rogers where Internet speeds were more reliable, as claimed by Rogers. Bell was not referred to on the website, but it was named in the direct mailing campaign. No other competitors were named. Bell sued, alleging the campaign was false and misleading and brought a motion seeking to enjoin Rogers from continuing with its campaign.
In reviewing the test for interlocutory injunctions, the Court found that although the allegations against Rogers were serious issues to be tried, the fact that Rogers had taken remedial steps to correct the alleged false and misleading claims made in its advertising campaign weighed heavily on the second and third factors of the test, namely irreparable harm and balance of convenience, respectively. The Court held that no proof of actual harm to Bell was shown and, in weighing whether the balance of convenience favoured the granting of the injunction, the Court held that Rogers’ damages in terms of lost market share and lost opportunities if the injunction was granted, exceeded any potential harm to Bell in the event that the injunction was not granted. Accordingly, the Court held that it was no longer appropriate to order an interlocutory injunction in the circumstance.
For a copy of the decision (Ontario Superior Court of Justice), visit:
http://www.canlii.org/en/on/onsc/doc/2009/2009canlii39481/2009canlii39481.html