Countrywide and Thomas Morrissey - Part 2
I recently wrote about how Section 52 of the Competition Act, which regulates misleading advertising, might be used by some of the janitorial subcontractors involved with Countrywide to get justice, contrary to the Toronto Star article which suggested that there were no legal remedies -each statute had "loopholes".
Recall, that according to the Toronto Star, the business arrangement between the (3) parties is as follows, facts which we assume to be true for the purpose of analysis.
1. Thomas Morrissey obtains a 50% interest in a cleaning company, "the contractor". This arrangement may be an inadvertent franchise arrangement. However, it is the janitorial subcontractors that we are concerned with and their remedies.
2. The janitorial subcontractors pay for jobs promised to them from the contractors.
3. The subcontractors pay in relation to how much of an monthly income they wish to receive: typically they pay $9,000 to contractors. (This may also be a franchise - the business opportunity franchise.)
4. The subcontractors complain that they were told systemically misleading things:
a) they were promised a certain number of janitorial jobs;
b) they were promised that if the work wasn't forthcoming, their money would be refunded.
Apparently, a number of the janitorial subcontractors were deceived and spent a good deal of money and received nothing in return.
(Janitorial franchises and business opportunities are so notorious that the FTC has a special list of questions that the prospective franchisee should ask.)
The janitorial subcontractors wrote the Competition Bureau and apparently, despite having jurisdiction under section 52, were told that there was nothing the Bureau could or would do for them.
What these individuals should have done was to make an application under Section 9 of the Competition Act, which reads as follows:
9. (1) Any six persons resident in Canada who are not less than eighteen years of age and who are of the opinion that(a) a person has contravened an order made pursuant to section 32, 33 or 34, or Part VII.1 or VIII,
(b) grounds exist for the making of an order under Part VII.1 or VIII, or
(c) an offence under Part VI or VII has been or is about to be committed,
may apply to the Commissioner for an inquiry into the matter.
Material to be submitted
(2) An application made under subsection (1) shall be accompanied by a statement in the form of a solemn or statutory declaration showing
(a) the names and addresses of the applicants, and at their election the name and address of any one of their number, or of any attorney, solicitor or counsel, whom they may, for the purpose of receiving any communication to be made pursuant to this Act, have authorized to represent them;
(b) the nature of
(i) the alleged contravention,
(ii) the grounds alleged to exist for the making of an order, or
(iii) the alleged offence
and the names of the persons believed to be concerned therein and privy thereto; and
(c) a concise statement of the evidence supporting their opinion.
The Commissioner must make an inquiry an application under section 9 is made, and has to respond to written inquiries from the applicant as to the status of the inquiry.
Here is an example of the type of affidavit evidence required, from the Universal Payphones misleading advertising case, which was brought under section 74.11, which is the civil counterpart to section 52.
Merely writing letters is not sufficient. You must have legal counsel bring the application.
It is your tax dollars at work: make them work for you.
