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Consumer - Unfair Representations. Rebuck v. Ford Motor Company
In Rebuck v. Ford Motor Company (Ont CA, 2023) the Court of Appeal heard a class action appeal (on substantive issues, it was already certified), involving the federal EnerGuide fuel consumption program. The issues were consumer protection 'misrepresentation' ones, from the federal Competition Act, the Ontario Consumer Protection Act (CPA) and similar other provincial statutes.
On the Ontario Consumer Protection Act (CPA) unfair representations issue the court concluded:[27] On the second common issue, the appellant states in its factum that it “repeats and relies on the arguments made in respect of the errors set out in Common Issue 1 in support for its position that [Ford’s] Representations were false, misleading and deceptive in breach of sections 14 and 17 of [Ontario’s] Consumer Protection Act” and the parallel provisions of the consumer protection legislation in six other provinces.
[28] Sections 14 and 17 of Ontario’s Consumer Protection Act provide:14 (1) It is an unfair practice for a person to make a false, misleading or deceptive representation.
(2) Without limiting the generality of what constitutes a false, misleading or deceptive representation, the following are included as false, misleading or deceptive representations:
...
14. A representation…failing to state a material fact if such…failure deceives or tends to deceive.
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17(1) No person shall engage in an unfair practice. [29] The motion judge found that the appellant “has not established on a balance of probabilities that any of the representations on the face of the EnerGuide Label or that the overall impression conveyed by the Label was false, misleading or deceptive, even under the most generous reading of the provincial ‘unfair practice’ provisions.” He rejected the appellant’s argument that, while Ford could not change the content of the EnerGuide label or use ratings other than those that it did, Ford failed to state material facts, and their failure to do so deceived or tended to deceive, by not providing supplemental disclosure to customers to the effect that: (1) the ratings on the label were provided for comparison purposes and not to predict actual fuel consumption; (2) the ratings, based on the 2-Cycle Test, and not the 5-Cycle Test, understated fuel consumption under real-world driving conditions by some 15%; and (3) the ratings on the label could only be achieved with fuel-efficient driving and not normal “real world” driving. The motion judge noted that the additional facts that the appellant argued should have been disclosed “simply restated what was already made clear in the FCG”.
[30] The appellant contends that the reference to the FCG on the EnerGuide label was not a disclaimer and served as a mere advisement to look elsewhere. The appellant argues that the court should not assume that consumers will follow this advice. Further, the onus ought to have been on Ford to demonstrate that the FCG was provided to all consumers. Even if the FCG fulfilled its disclosure obligations, Ford’s marketing materials were in breach of its duty to disclose because they did not refer to the FCG.
[31] We are not persuaded by this submission. In our view, there was no deceptive non-disclosure in breach of s. 14 of Ontario’s Consumer Protection Act or the parallel provisions of the consumer protection legislation in six other provinces. All of the appellant’s three “omissions” are variations on statements indicating that the ratings on the EnerGuide label do not represent the “actual” fuel consumption that will be achieved under “real-world driving conditions”. Given that the appellant failed to establish (or even advance the submission) that the overall impression conveyed by the label was that the represented mileage would be achieved by all drivers, the motion judge did not err in finding that the absence of additional disclosure would not deceive or tend to deceive the average car-buying consumer.
[32] As to the appellant’s assertion that the motion judge failed to address the marketing materials, which did not refer to the FCG, the motion judge characterized the appellant as focusing on the EnerGuide label and including little to no discussion of his allegation that Ford repeated the label’s fuel consumption data in their sales brochures and marketing materials. The motion judge noted that extending the focus to include the marketing materials “would have been problematic.” Such materials would appear to raise significant individual issues.
[33] In any event, while the marketing materials did not refer to the FCG, every consumer received the EnerGuide label, which did. There is no basis to interfere with the motion judge’s finding that car-buyers for whom fuel consumption was important would “likely” have consulted the FCG. The appellant’s argument that the references to the FCG on the EnerGuide label are not “disclaimers” is irrelevant. What is relevant is that the EnerGuide label prominently directed the customer to the FCG. The prospective customer was provided with accurate and valuable information about fuel consumption and told where they could look for additional information.
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