“You may have won a million dollars!” … or not, if you don’t happen to have the pre-selected winning number. Various bonus prizes for early birds are also offered. This is a common marketing device, but the Supreme Court of Canada held unanimously in Richard v Time 2012 SCC 8 that it offended the Quebec Consumer Protection Act. Mr. Richard got $1000 in damages for being misled (no misles were involved), plus $15,000 in punitive damages, plus his costs at trial (where he had won) and on appeal (where he had lost), and on a solicitor-client basis in the SCC.
The Quebec Court of Appeal had found that no consumer ‘with an average level of intelligence, scepticism and curiosity’ would have been deceived by the mail. The SCC held that this is not the proper test for consumer protection. At para. 75, the court said ‘Such a test would make it possible to exonerate a merchant who is lucky enough to be sued by a consumer of above‑average intelligence.’
Slaw readers, who would all fall into that category, may breathe more easily now that the SCC has asserted that they are still covered by consumer protection legislation. The future of sweepstakes marketing may be a different question. One recalls the cartoon of the man opening such a letter, which began ‘You may already have won ten million dollars! If you believe that, you will believe anything, so read on …’.
The marketing material sent to the plaintiff is reproduced at the end of the SCC’s decision. There is a very big difference between the prominence of the ‘you have won’ message and the ‘well, maybe not’ message.