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Contests & Promotions

There are various legal regimes that must be considered when running a promotional contest in Canada. In addition to Canadian privacy legislation and CASL, some of the other key considerations are set out below.

Competition Act

The Competition Act prohibits promotional contests when:

  • adequate and fair disclosure is not made of the number and approximate value of the prizes, of the area or areas to which they relate and of any fact within the knowledge of the person offering the promotional contest that affects materially the chances of winning;
  • distribution of the prizes is unduly delayed; and
  • selection of participants or distribution of prizes is not made on the basis of skill or on a random basis in any area to which prizes have been allocated.

For additional guidance on this requirement, see the Competition Bureau’s Promotional Contest Enforcement Guidance.

Criminal Code of Canada

In general, the Criminal Code prohibits certain lotteries and games of chance. Under the Criminal Code, everyone is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years who disposes of any goods, wares or merchandise by any game of chance or any game of mixed chance and skill in which the contestant or competitor pays money or other valuable consideration. As such, any conduct of a contest whereby the winners are determined solely by chance or mixed chance and skill is prohibited. For this reason, most contests implement a skill-testing question prior to awarding a potential winner a prize. Any promotion whereby an entrant must purchase a product or service as the sole means to enter a contest of chance or of mixed chance and skill is prohibited. This is often avoided by an alternative no-purchase necessary contest entry method.

Special Considerations in Quebec

Quebec is the only province that has a law that applies specifically to contests. The Rules Respecting Publicity Contests are administered by the Régie des alcools, des courses et des jeux. When a contest is run in Quebec, it must meet certain requirements, including:

  • all materials for Quebec residents must be in French;
  • notice of the contest, and the applicable fees based on the value of the prizes, a copy of the contest rules, and the text of any advertisement used in the contest must be filed in advance of the contest with the Régie;
  • the contest rules must contain certain prescribed information; and
  • in certain cases, a security bond may be required.

False and Misleading Advertising

False and misleading representations in advertising are prohibited under both the federal Competition Act, as well as provincial consumer protection legislation.

Competition Act

  • The Competition Act governs most business conduct in Canada and is aimed at preventing anti-competitive practices in the marketplace.
  • Among other things, the Competition Act prohibits false or misleading representations and deceptive marketing practices in promoting the supply or use of a product or any business interest.
  • For a list of advertising “Dos and Don’ts” and additional information on this provision, see the Competition Bureau’s pamphlet: False or Misleading Representations and Deceptive Marketing Practices.

Consumer Protection Legislation

Provincial consumer protection statutes set out the rights of consumers in the context of consumer transactions and also prohibit certain unfair practices. For example, Ontario’s Consumer Protection Act, makes it an unfair practice for a person to make a false, misleading or deceptive representation, such as:

  • A representation that the goods or services have sponsorship, approval, performance characteristics, accessories, uses, ingredients, benefits or qualities they do not have.
  • A representation that the goods or services are of a particular standard, quality, grade, style or model, if they are not.
  • A representation using exaggeration, innuendo or ambiguity as to a material fact or failing to state a material fact if such use or failure deceives or tends to deceive.
  • A representation that misrepresents or exaggerates the benefits that are likely to flow to a consumer if the consumer helps a person obtain new or potential customers

Each of the provincial consumer protection statutes vary by province. You can review the statutes relevant to your business here:

Information and Privacy Commissioner of Ontario: IPC

IAB Canada Response to IPC Strategic Priority Setting Consultation – January 2021. To view the response, please click here.

Intellectual Property

Intellectual property in Canada is governed under several pieces of federal legislation, including The Trade-marks Act and The Copyright Act.

Trade-marks

  • A trade-mark is a word, symbol or design (or a combination of these) that is used to distinguish the wares or services of a person or organization from those of others in the marketplace.
  • A Canadian trade-mark registration can often be obtained within 20 to 24 months of filing and gives the registrant the exclusive right to use the mark across Canada. As a result of upcoming amendments to the Trade-marks Act, registrations will be valid for a period of 10 years, with renewal for successive 10-year periods on payment of renewal fees.

Copyright

  • Copyright subsists in all original literary, artistic, dramatic and musical works, including computer programs, provided that the author is a citizen or resident of a treaty country or the work, if published, was first published in a treaty country. Copyright gives the owner the sole right to produce or reproduce a work, or a substantial part of it, in any form.
  • While copyright protection generally lasts for the life of the author, plus 50 years, the Canadian government has considered extending this term to 70 years.
  • Registration, while not necessary, provides certain presumptions that are useful if the copyright is litigated and prevents any person from relying on the defence of “innocent infringement” (i.e., where the infringer did not know and had no reason to suspect that copyright existed in the work). If there is no registration, an infringer who successfully proves the defence of innocent infringement could be prohibited from further copying but would not be liable for damages.