What are the key takeaways from the Tribunal’s recent decision in the Cineplex case dealing with online representations and the Competition Act’s drip-pricing provisions? We speak with the Competition Bureau’s counsel in the matter along with a private practitioner and an expert in consumer behaviour to find out more.
Host Charles Tingley speaks with Competition Bureau counsel Irene Cybulsky, lawyer Michael Osborne and Professor Alix Barasch about the Competition Tribunal’s recent decision in the Cineplex case, which is the first litigated proceeding involving allegations of deceptive or misleading “drip-pricing” and resulted in a Tribunal order to pay nearly $39 million in monetary penalties. This episode continues the discussion among panelists from a Canadian Bar Association Marketing Practices Committee brown bag session held on December 10th 2024 entitled "Straight from the Box Office: Perspectives on the Cineplex Decision". We discuss the legal implications of the Cineplex decision and relevant compliance considerations for online marketers.
00:02.08
Charles Tingley
Irene Cybulski, Alix Barasch, and Michael Osborne, welcome to the Counterfactual Podcast. We're delighted to have you join us. So I really enjoyed the brown bag session that just wrapped up, and we're very grateful that you've agreed to stick around to probe some of the issues you've been discussing and to share your views with our listeners. On the actual brown bag, I think this podcast episode was described as a behind the scenes bonus feature.
00:30.82
So that's all very exciting, and I hope we can live up to the billing. But maybe to start off with, I wonder if we can have a brief introduction to the Cineplex case to help situate ourselves. Irene, obviously as co-counsel to the Commissioner of Competition in the matter, I think you're probably best placed to provide an overview of the case, maybe including just a brief factual matrix and key arguments and tribunal findings.
00:57.94
And if you like, also maybe just a primer on what drip pricing even is and why it's a Bureau enforcement priority.
01:05.67
Irene Cybulsky
Okay, so the commissioner brought this case to the Tribunal against Cineplex for how it was representing its ticket pricing online. This was the first opportunity for the commissioner to have an interpretation of the drip pricing provision 74.111 that states that additional fees or charges should not be separate unless they are imposed on the purchaser by the parliament or government. And Cineplex imposed what they referred to as an online booking fee for ticket purchases. It was deceptive and the commissioner alleged not only under the drip pricing provision, but under the general
02:03.13
provision of deceptive marketing 74.011(a), making a representation to the public that is false or misleading in a material respect. The long and short of it is that Justice Little for the Tribunal agreed, wrote a 122-page decision, and meted out an administrative monitoring penalty of almost $39 million.
02:34.26
The case is now being appealed, so my comments will be somewhat restricted. I think that captures what the case was about.
02:43.57
Charles Tingley
Thank you, Irene. And that last piece about the administrative monetary penalties is relatively sobering. But I will nevertheless ask, and it might be putting the cart before the horse, but this might introduce some themes we'll talk about a bit later. But I don't know if each of you has a key takeaway from the Tribunal's decision. If you had one thing that you could say about the decision, what would it be just to get us started and prime the pump?
03:11.25
Irene Cybulsky
Well, I think the remedy signaled that the new AMP regime is here and businesses can no longer pay a license to engage in deceptive marketing and get away with it.
03:29.85
Michael Osborne
So mine is, how should a business react to this if it's going to be charging service fees? The first question is, should you be charging service fees? Why not just wrap it into the price if you can? If you can't or don't want to, then you're going to have to make sure that the service fee is disclosed in very close proximity to the price. How close has yet to be determined?
03:57.92
A big fact driving this decision was the fact that the service charge was only disclosed quote unquote below the fold where most consumers wouldn't scroll and therefore wouldn't see it.
04:15.26
Alix Barasch
OK, well, I'll build on both of those because my big takeaway is, of course, biased as a behavioral economist. I think it's just great to see that in these decisions, the Tribunal is thinking about how consumers actually behave in the marketplace and what are their different potential biases in the way that their behavioral decisions are influenced by their perceptions of certain content and where the pricing information appears actually really matters. It's not just normatively irrelevant as you might think as a traditional economist. As behavioral economists, we really like to think about the descriptive ways that consumers engage with information and it's great to see
05:06.89
the legal community thinking about that more deeply and it has implications for both of the things that Irene and Michael just mentioned, both the remedy as well as how businesses might make changes based on this this decision.
05:23.17
Charles Tingley
Those are very helpful takeaways. Thanks all. Now, although the Cineplex case was billed as a test of the new drip pricing provisions that Irene mentioned at the beginning of the episode, it is notable that the tribunal found that Cineplex's price representations were materially misleading under the general misleading representations provisions
05:49.60
Charles Tingley
without, frankly, need to resort to the new drip pricing provisions which deem certain conduct to be misleading. Was there anything remarkable about the Tribunal's consideration under the general test for misleading representations, particularly with respect to the general impression that is left by representations?
06:21.58
Alix Barasch
Well, I'm glad you asked me to jump in from my perspective. It's all interesting and noteworthy because I'm not necessarily trained on the legal side, but I will say that, you know, building on what I was talking about earlier, that there was absolutely consideration of how do regular old consumers engage with these websites and do people actually scroll? I mean,
06:51.45
the expert report from Eckert was really talking about website features. You already mentioned above and below the “fold”. How does that affect the way that consumers make decisions? Where I would love to see more on this moving forward – If you do want to take into account experts' opinions in these cases in the future,
07:20.23
I'd love to see more empirical evidence that directly tests those ideas in the context of the case. And so here we have the Cineplex website and the information is technically there. The online service fee you can click buttons to see more about it. But how would you actually know if consumers are misled or dissatisfied with this information the way that it is presented. And so one thing I would love to do is just take you through kind of what we talk about as the consumer information processing decision experience. And so there are certain stages and you have to have each stage before you get to the next stage. And you could have empirical tests of how consumers process
08:10.07
that information and whether they process that information. That's actually step one. So the first stage is attention. And even if the information is there somewhere on the page, I'd say that's pretty necessary for consumers to notice it, but it's not sufficient. So even if consumers do scroll to the bottom, and there could be data that looks at just scrolling, I would say you need another layer that looks at how consumers are processing the page. What do they actually see? We have tools like eye tracking and mouse tracking that helps identify what are people looking at and that can be some indication of whether they're attending to key pricing details on the website. The next layer that I would love to see from an academic perspective is whether
09:05.09
consumers are incorporating that pricing information, assuming they attended to it, of course. Are they incorporating it into how they mentally represent the price? So here we oftentimes use memory tasks. Memory would, if you have memory of something, it suggests that you've encoded it. And you could have two conditions, and this is the way that – in the Morwitz report, she cites her own work – the way that she tests whether something's misleading or not, whether it's partitioned or drip pricing. What do consumers remember spending? And when prices are broken down and there's a smaller base fee upfront that you see first,
09:53.44
consumers anchor on that, and then they remember the price as being less expensive than those who see an all-inclusive fee, an all-inclusive price. And you could even just ask consumers, do you remember paying an online service fee? These are really important pieces of data for knowing if consumers are taking that into account. And then the next layer would be behavioral impact. Do people search for other alternatives more after encountering additional fees. This could be some evidence that they care about it, but I would also like to point to a really big literature cited in the Morowitz report as well, that because of status quo bias, because of the endowment effect, because of even some cost fallacy, even if we attend to it, perceive it,
10:47.95
we might say, it's not worth starting over and those search costs are really important to consumers too. And so the behavioral impact could be there, even if consumers are aware of those fees. And then finally, post-purchase satisfaction. Why not directly measure harm in some way, asking consumers if they have any regret over the purchase or whether they were surprised at any point in the purchase process.
11:14.83
I think linking these deceptive practices to actual kinds of measurable harm would be really interesting and you could get a consumer's feelings and their sense of satisfaction after making a purchase. And so those are some ideas that I had and I'm very curious to hear from the legal perspective whether those would be, which one of those would resonate the most. And so it's just an interesting thing for the future.
11:43.88
Charles Tingley
Well, let me redirect something to Michael here because I think that's a fascinating discussion and your reference to things like mouse tracking, eye tracking – I think it was heat maps and surveys you can do. I mean, we are so far away from the literal meaning of words, and obviously the test is general impression, but I can't help but wonder what does a business do with all that when they're planning, I guess I don't even know if it's barely even an ad campaign, it's really the purchasing funnel or just disclosure on its website. And Michael, I don't know if you have a sense for, is this something that can be harnessed by businesses to comply or is that like just a three bridges too far?
12:28.70
Michael Osborne
Well, it could be harnessed by businesses to comply or indeed to not comply. I mean, when you read the evidence in this case, at least as it's set out in the decision,
12:42.74
especially about this idea of how the website's designed and how, quote, conversion pages are designed to convert consumers quickly from someone browsing to someone buying a ticket. You get the impression that this isn't accidental, right? This design is deliberate and that all of the things that Alix just talked about were harnessed.
13:11.73
There's no clear finding that that's what they were doing, so we have to be careful. But it certainly leaves open the possibility and inference that Cineplex, in fact, was harnessing all of this stuff about anchoring and perception of lower price and so on to get more sales.
13:29.89
Irene Cybulsky
I'm just going to jump in on your comment about the deliberate design because I think Justice Little underscored that the design and what happened on the webpage was under Cineplex's control. And our expert made it clear that a newspaper is very different from going on a website, going on a webpage where there's interaction, there's interplay. It's not a two-dimensional thing, the webpage. There are things that Cineplex has put in to attract their so-called call to action prompts that they guide you. Cineplex, there's talk in the decision about the efficiency and getting to conversion, getting to buying a ticket. So I think perhaps it wasn't very explicit, but there's a lot in that decision to show how
14:26.03
that the website was under Cineplex's control.
14:32.87
Michael Osborne
And to pick up on that, so then how would you use it to comply? I mean, one thing that businesses will have to think about when they're designing web pages, when they're hiring people that design the experience, when they're hiring Alix to help on the behavioral side is, and let's face it, they want and they may want to maximize conversions. So how do you do that? How do you maximize conversions? How do you maximize sales
15:00.57
while at the same time, not following the foul of this and not just the four corners of the drip pricing provision, but the broader misleading advertising provision? In other words, how do you, and to pick up the language of Justice Little, how do you avoid a situation where the consumer is deceived or led astray by contradictory and incomplete information?
15:26.46
And so that's going to be something businesses should think about as they're designing their web pages or the selling web pages that they use.
15:38.17
Charles Tingley
And what did the Tribunal say about the type of consumer that then approaches this purchasing funnel? Was there anything interesting in that regard?
15:48.30
Michael Osborne
So the Tribunal rejected the “credulous consumer” from Time. They went, as one student put it, I wish I could take credit for this, they went to a time before Time. And they've adopted the ordinary consumer. So what's an ordinary consumer? Well, Alix knows the answer to that.
16:17.75
Alix Barasch
Thanks. I think it's a good opportunity to just say that there are interesting theoretical differences in consumers, their vulnerabilities, how they make decisions. But one of the special aspects of my field in behavioral economics is that even ordinary consumers, ordinary in quotes, are susceptible to all of the biases, the heuristics that are talked about,
16:46.93
in the expert reports in the decision. And so it's hard to, I'd say those distinctions while interesting, I'd say the practicalities of actually tapping into what that means is going to just open up questions for future research. And you would want to understand, what are the characteristics of consumers that make them more or less susceptible to fully understanding pricing practices and disclosures? And I don't think we actually know that. And I feel, I mean, there's certain things
17:24.12
that you know you can measure, but do firms have access to those distinctions? And what are your samples and who is the advertising directed towards? There's a really interesting separate discussion you can have on that in terms of who are your consumers? What segments are you targeting? And so there's just a lot of interesting questions, but at least from my perspective,
17:48.58
if you are an expert, if you are the first time that you've navigated an online context, you still are influenced by anchors. You're still influenced by the first price that's represented. And so all-inclusive pricing does matter if it's partitioned or not and where that extra fee is on the page. You might notice it if you're more experienced, but you're still influenced by what you see in those different reference points, we say.
18:21.04
So it'll be interesting to see how we measure those things and tap into them moving forward.
18:28.78
Charles Tingley
And maybe just, oh, go ahead, Irene.
18:28.83
Irene Cybulsky
So just to take Alex's comment, and even though the standard is an ordinary citizen with average intelligence, it's common sense, going back to the cases like Maritime Travel, each case will develop on the facts specific to it. And so if there is any evidence of sophistication of the intended audience, that will be a factor.
18:57.87
But not only is the actual audience, like in Maritime Travel, it wasn't just the audience, it was what's at stake, how much is the consumer going to spend was important, and also how much care would the consumer take in making the purchase, which in this case, an online case where there was efficiency of purchase, that was an issue. And so just as Justice Little did consider submissions as to the ordinary citizen, both by the Commissioner and Cineplex, Cineplex did not suggest any special characteristics or higher or lower sophistication. And so that's how he came to his decision.
19:48.80
Charles Tingley
So we haven't even gotten to really the new drip price provisions. And I guess we'd be remiss not to. So I'd like to ask, and maybe I'd ask Michael to start, because this is the first opportunity to interpret those new deeming provisions with respect to drip pricing. And I would just ask, have they lived up so far to their billing? Are they a game changer? Do they require all inclusive pricing?
20:18.99
Michael Osborne
Yeah, so there were a couple of, more than a couple, but a few key issues that arise out of this. One of them, was it a complete code or a deeming provision? Justice Little started by saying he didn't want to make that decision. He then essentially came down on the side of it's a deeming provision, both by effectively applying it that way and also by holding that it's not a complete code, that in other words, you could still have a finding that
20:49.32
the representation is false or misleading under the ordinary false or misleading provision, and that finding by the way, for those who are looking for a little bit extra from the podcast, is why I think that Cineplex's appeal will fail, but anyway going back to the issues under the drip pricing provision, the Commissioner had contended that at least in this case there had to be all-in pricing. The problem with all-in pricing is that, first of all, the provision doesn't clearly mandate it. Secondly, you can get situations where you have a different basis of calculation of a price. So for example, and Cineplex is to some extent an example of this, since the service fee varies according to whether you're buying, whether you're a member of Scene Plus or not, and it caps out at four tickets and so on.
21:45.39
And so it can be difficult to advertise in all-in price in some circumstances. And the other issue that I think is going to be the one that the decision is most vulnerable on appeal is Justice Little's finding that the fee was obligatory. And the problem with this is that it wasn't. You could close down the web page, get in your car, go to the cinema,
22:15.19
buy a ticket there, and you wouldn't pay the service fee. So on that level, objectively speaking, there is no question at all that people who don't want to pay the $1.50 don't have to. So how did Justice Little get around this problem? Well, he said that it's obligatory because the consumer won't know that they can get around it because nothing there says that if you don't want to pay it, get in your car, go buy the ticket at the cinema. It doesn't say this is the online price, that it's a different one in theater. And that makes a lot of sense from a policy perspective. It's in line with the objective of the Act. It's really hard to criticize from a policy perspective. But it's not what the provision says. What he's effectively done is applied a subjective test of does the consumer know whether or not it's obligatory?
23:14.43
And that's going to be a focus of the appeal, I think, because it's not really what the provision says. It's not an impossible interpretation, but it's not reading it. You would have thought it was an objective as opposed to subjective test.
23:31.35
Charles Tingley
I think, Alix, you made a point kind of on that that I thought was interesting as to maybe how businesses might want to represent those sorts of things.
23:40.31
Alix
Yeah, I am glad you just mentioned, Michael, that sort of aspect. I found it really interesting in the decision how he talks about the spirit of the law, and I know he doesn't use those words, but that's how it kind of took us. So keeping that in mind,
23:58.16
potentially about consumer protections or you know just not being misleading in general as a firm, seems like a reasonable goal. I would say there's still a trade off for firms to navigate because while all inclusive pricing might fix that anchoring effect, it gets consumers to encode the total price right off the bat. And then maybe they can save by joining the loyalty program or going to the theater.
24:26.20
This definitely streamlines things that makes things more efficient. All of that stuff is good from a consumer perspective, but it's still also, I wouldn't say it hides fees, but it could just make them less noticeable. Consumers might not feel them as strongly and they might then influence their decision about whether to go with an alternative less because they're just thinking about that, that total amount and not the fact that, hey,
24:53.82
they charged me an online service fee that really you know doesn't reflect any of their costs as a firm. And they were offering you know seat selection even before they implemented these fees, which is what they say in the defense, like the benefit they're providing. And I actually think there is a case that you could say that hey, booking in advance and getting the best seats. And there's some data for that from Cineplex that people are choosing those middle seats. And that is actually a benefit that I might choose to pay extra for. And that is segmentation. That's price discrimination. Those are all important, helpful marketing practices for kind of dividing up consumers in the marketplace.
25:36.34
But as Michael already alluded to, yeah they don't position it that way. They don't talk about the online fee being for that benefit. And similarly, in terms of the sustainability point, they don't say, hey, this is the movie theater price. The base price is what you can go and get, definitely you can get in another channel.
25:56.16
They just, they don't convey these things in terms of consumer benefits, consumer value. And I say the broader point here for any industry, any firm, is that transparency usually gets you pretty far. And so if you can provide clear, helpful explanations for your fees, that goes a long way. It goes a long way probably legally from what I'm understanding, but it definitely goes a long way with consumers too. They like to know that they have all of the information. They can choose whether to use it, they can choose whether to join memberships or you know how much they want to partition their own price essentially. But I think you can you can get the best of both worlds here as a firm. You just have to think about these, the trade-offs and make sure you're really thinking about consumer welfare in the end. I think then if you're doing that, you can still convert consumers while being fair and transparent.
26:53.00
Irene Cybulsky
So there was one fact in this case which worked against Cineplex, and that was that the advantage of getting the best seats was equally applicable. If you were in person in advance and used the ticketing kiosk at the theater, you got the same advantage. So at the end of the day, the only advantage of online booking fee rather than being at the theater in person, which some people don't drive to the theater – some people actually work right next to a theater or walk by a theater –
27:22.91
Irene Cybulsky
So the only advantage really is the ability to 24-7 at your fingertips to buy the ticket rather than physically do it in person.
27:35.01
Charles Tingley
So as Irene mentioned earlier, that the Tribunal ordered record monetary penalties in this case is itself a major takeaway from the decision. I wonder if there's anything else that struck you as worthy of note in terms of the Tribunal's approach to recently enhanced penalties and their calculation.
27:57.77
Michael Osborne
Yeah, a couple of things. First of all, it could have been worse for Cineplex. The Tribunal only ordered one time what they considered to be the benefit. Still a lot of money, but it could have been three times. There's a basis on which it could have been higher though. The evidence of Dr. Morwitz would support the conclusion that, and what Alex has just been saying too, would support a finding that more people would buy tickets, there'd be more ticket sales due to the lower price and the anchoring of the lower price and all that, than there would be if they advertised an all-in price. And so if you could calculate that delta, which I suspect would be very difficult, but if you could calculate that delta,
28:51.98
then the Tribunal would have been justified in imposing an AMP that took that into account as well as part of the benefit.
28:58.78
Because the benefit, I mean what was Cineplex after here? Cineplex wanted to get the $1.50 but they also wanted to get it without pissing consumers off by the fact that the prices had gone up by $1.50 and therefore losing sales.
29:14.55
So sales they didn't lose by hiding this $1.50 are part of the benefit as well as the $1.50.
29:24.17
Charles Tingley
Michael, is there possibly another way to look at it or maybe another way to look at it at the same time, which is that the benefit derived from the conduct in some cases may not even be the online ticket fee to the extent that consumers weren't misled. And I appreciate that's not, you don't need to prove that necessarily, but,
29:53.29
Charles Tingley
just throwing that out there to work in the other direction.
29:56.56
Michael
Yeah, I mean I don't think the benefit is tied to proving that people were misled. Now it would be if you were bringing a private action based on this and you wanted damages. I mean, that's the problem with all the class actions on misleading advertising is that you bump into the problem of reliance and that's not and almost never is a common issue and so they fail. But here, I don't see the benefit as being tied to proving people were misled, that would be very, very difficult. And it's the benefit of the conduct, right? And the conduct is what they did. And what they did was to impose this price. And what did that do for them? So I still tend to think it's the $1.50 plus whatever additional sales they made in the but for world, or by comparison with the but for world.
30:58.46
Charles Tingley
And then just very quickly, maybe I'll ask Irene to talk about this. The Tribunal decided not to order a restitutionary remedy for, I guess, administrative reasons, but not sure if you can comment on maybe the implications of that or what that means for choice of remedies in the future.
31:22.22
Irene Cybulsky
Well, there's certainly going to need to be a lot of thought given as to how a section 74.1(d) remedy can be distributed. It's got to be timely. It's got to be not too costly. And it will be a challenge. It will, I think, disappoint consumers that they're not benefiting. On the other hand, if you look at like FTC proceedings that have tried this, it goes on for years. And finding all of those consumers is, is such a nightmare. So it'll have to be done on a case by case basis, look to see how many consumers are out there, what time period it's been over and what the dollar value is
32:18.12
and then decisions will be made on a case by case basis. But obviously, there needs to be a lot of preparation. Should this be decided at the same hearing? I don't know. Those are factors that each case will have to be determined.
32:35.73
Michael Osborne
I don't know that it's –as you know the Tribunal held that it was it was too difficult and of course I don't know the evidence the way Irene does, but surely it couldn't have been that hard for Cineplex to just give people more Scene points. Now, granted, that would only work for people that have a Scene account, but it would nevertheless provide a certain amount of restitution.
33:05.48
Loblaw in the bread pricing case – people will remember they offered a $25 gift certificate to anybody. You just went on the website and said, hey, I bought bread at Loblaw, you know, over the class period and they give you $25. The interesting thing from the business’ standpoint is that both of those things benefit both consumers and the business, right? Because if you give me more Scene points, then where am I going to spend them? Presumably in Cineplex.
33:38.29
or if you give me a gift certificate to Cineplex, there's only one place I can spend that: Cineplex. So it's from a business standpoint, it's a very interesting way of doing this because it creates a positive for your business at the same time as compensating people.
33:58.80
Charles Tingley
Now at the top I asked for each of your key takeaways. Now I just want to focus specifically on what each of you might say about top compliance tips for businesses coming out of the decision. I don't know who wants to take that to start off.
34:20.87
Irene Cybulsky
I'd probably finish the same way as I started. It doesn't pay to be found to be engaging in reviewable conduct.
34:31.56
And the Bureau has lots of educational material available to assist in making a business decisions.
34:44.47
Michael Osborne
Yeah, and my key takeaway, and you know, when we advise clients, ideally all-in pricing, even though I say the Act probably doesn't require it, you're not going to get in trouble if you advertise an all-in price, if you can. If you can't or don't want to, then it is essential that any obligatory fixed fees be displayed and disclosed in proximity to the original price. Another way, of course, would be to change the nature of the fee. So for example, if Cineplex kind of took a cue from airlines,
35:33.04
and you went through and you bought your tickets with no service fee and then they gave you crummy seats and they were going to charge you $1.50 a seat to upgrade. You know, you would have a choice, right?
35:44.75
You could either spend the money and get good seats or you could stay at the crummy seats.
35:51.05
Whether that would be good for their brand reputation, I don't know, but at least it wouldn't fall afoul of the law.
36:00.63
Alix Barasch
But an interesting point from my perspective too, just because I was thinking about the airline industry and then the airlines that have gone full unbundling, you get this small base fee but then you pay for every additional thing and so you have to pay for your bags and the seat and a million other things and then there's been like parodies of that, you have to pay for your seatbelt, you have pay to get off the plane. And so you could, you could take it to the extreme. And that's why I think it's just helpful for firms to think about the tension and think about consumer welfare at its core. And really you can't go wrong in addition to your point about just including the all-inclusive fee to start, if it's possible, which you already highlighted is hard to do.
36:51.34
But explicit acknowledgement of the fees also is a way you can't go wrong. Anything that just makes it more transparent, it helps educate consumers on what they're paying – what they're getting and what they're paying for. The reference price that you choose is one big decision that you can make, but you can also frame it differently. You can talk about the consumer benefits and the value that they're getting.
37:17.28
I think there's a lot of ways to still, again, in the spirit of the law, do right by consumers while also making them feel like it's not too costly to purchase your product, I mean that they're getting value from each of the pieces that they decide to pay for. You know complete unbundling.
37:36.52
isn't fun either from a consumer's side. You don't want to have to make every micro decision. And so that satisfaction is important too. And there's search costs and just your time is valuable as a consumer. So these are you know really interesting discussions that we have on the business side. It's cool to see how you guys are talking about it on the legal side. So be curious to see what businesses decide to do with this decision.
38:03.73
Charles Tingley
And just really quickly, it didn't appear that a due diligence defense was raised in this instance, but there is a defense, a limited defense, under this provision that, depending on your efforts to avoid what ended up being reviewable conduct, you don't need to pay a monetary penalty and essentially the
38:33.28
the remedy is to cease the conduct. I don't know if there's anything additive that any of you would offer in order to potentially make out such a defence.
38:45.44
39:02.46
Michael Osborne
Anytime I've ever looked at due diligence defence in the case law, and you know, not just competition but various other areas of the law, typically,
39:16.82
Michael
whatever happened is because there's a gap in whatever you're doing to prevent it happening. And that very gap means that you can't benefit from the due diligence defense because your due diligence didn't aim at the gap that you didn't know was there. It sounds unfair, but that's the way the law has typically gone in due diligence defense cases.
39:39.48
So it's a very, very narrow defense. A little bit of a bait and switch there. The government sort of suggests you might have one, but then you, in practice, never do.
39:52.85
Charles Tingley
All right, well, look, this has been a very interesting conversation, and I would actually commend the underlying brown bag session to those for whom it is available, which was slightly more detailed than this discussion, although we did discuss items, certain items, at further depth. And so Alix, Irene and Michael, thank you very much for joining the Counterfactual podcast to share your insights into the Cineplex decision and what it means for drip pricing and deceptive marketing enforcement and compliance under the Competition Act.
40:25.88
Alix
Thanks for having me.
40:27.50
Michael
Thanks for having me.
40:28.32
Irene Cybulsky
Likewise, thank you.