(3) Protection Against False or Misleading Representations in the C.P.A.
[44] One of the main objectives of Title II of the C.P.A. is to protect consumers from false or misleading representations. Many of the practices it prohibits relate to the veracity of information provided to consumers. Section 219 C.P.A. sets out this objective in very clear language. It provides, quite generally, that no merchant, manufacturer or advertiser may make false or misleading representations to a consumer by any means whatever. The word "representation" is defined in s. 216 C.P.A. as including an affirmation, behaviour or an omission. Section 219 C.P.A. is supplemented by prohibitions relating to certain specific types of representations (ss. 220 to 251 C.P.A.).
[45] Section 218 C.P.A. guides the application of all these provisions of Title II. It explains the approach to be used to determine whether a representation is to be considered a prohibited practice. Its wording is based to a large extent on that of s. 52(4) of the Combines Investigation Act, R.S.C. 1985, c. C‑23, a slightly different version of which can now be found in s. 52(4) of the Competition Act, R.S.C. 1985, c. C‑34. Section 218 C.P.A. reads as follows:
218. To determine whether or not a representation constitutes a prohibited practice, the general impression it gives, and, as the case may be, the literal meaning of the terms used therein must be taken into account.
[46] The analytical approach provided for in s. 218 C.P.A. requires the consideration of two factors: the "general impression" given by a representation and the "literal meaning" of the words used in it. We will review the requirements of each of these two factors.
[47] The phrase "literal meaning of the terms used therein" does not raise any interpretation problems. It simply means that every word used in a representation must be interpreted in its ordinary sense. The purpose of this part of s. 218 C.P.A. is to prohibit merchants from raising a defence based on a subtle, technical or convoluted meaning of a word used in a representation. The legislature's intention was thus that the meanings given to words used in representations be the same as their meanings in everyday life.
[48] What is meant by the expression "general impression" requires further explanation, however. Although there have been few cases on this point, the courts seem in some recent decisions to have established more explicit principles from which a predominant interpretation can be drawn.
[49] One of these principles that has recently been developed more clearly by the Quebec courts relates to the abstract nature of the analysis of the general impression given by a representation. Influenced by Professor L'Heureux's comments on this point, the courts now seem to accept, as did the courts below in the instant case, that the "general impression" conveyed by a representation must be analysed in the abstract, that is, without considering the personal attributes of the consumer who has instituted proceedings against the merchant. (See Québec (Procureur général) v. Distribution Canovex Inc., [1996] J.Q. No. 5302 (QL) (C.Q., Crim. and Pen. Div.), at paras. 39‑40; Option Consommateurs v. Brick Warehouse, l.p., 2011 QCCS 569, at paras. 71‑73; N. L'Heureux, Droit de la consommation (5th ed. 2000), at p. 347. See also Tremblay v. Ameublements Tanguay inc., 2011 QCCS 3078 (CanLII), at para. 97; and L'Heureux and Lacoursière, at pp. 489‑90.)
[50] This approach is consistent with the spirit of the C.P.A., whose main objective is to protect consumers. The courts must therefore be able to sanction any representation that, from an objective standpoint, constitutes a prohibited practice. Whether a commercial representation did or did not cause prejudice to one or more consumers is not relevant to the determination of whether a merchant engaged in a prohibited practice within the meaning of Title II of the C.P.A. The C.P.A. is concerned not only with remedying the harm caused to consumers by false or misleading representations, but also with preventing the distribution of advertisements that could mislead consumers and possibly cause them various types of prejudice.
[51] In sum, this is the objective being pursued in requiring that an abstract analysis be conducted under s. 218 C.P.A. This approach takes account of the concrete impact that advertising can have on consumers in their everyday lives. Professor Claude Masse has written the following on this subject:
[TRANSLATION] Commercial advertising often plays on the general impression that may be conveyed by an advertisement and even on the literal meaning of the terms used. Information in advertisements is transmitted quickly. Advertising relies on the image and the impression of the moment. This general impression is often what is sought in advertising. By definition, consumers do not have time to think at length about the real meaning of the messages being conveyed to them or about whether words are being used in their literal sense. The content of advertising is taken seriously in consumer law. Consumers do not have to wonder whether or not the promises made to them or the undertakings given are realistic, serious or plausible. Merchants, manufacturers and advertisers are therefore bound by the content of messages actually conveyed to consumers. [Emphasis added.]
(Loi sur la protection du consommateur: analyse et commentaires (1999), at p. 828)
[52] The use of the general impression test of s. 218 C.P.A. reflects how, in practice, consumers are very frequently led to exercise their freedom of choice. The question thus becomes how the courts are to determine the general impression conveyed by a commercial representation. The parties have taken very different positions in this Court on the interpretation of this concept.
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