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Advertising Dispute Procedure - General

6.1 Objection to Panel Members
Each party to an Advertising dispute will be given written advance notice in a timely manner of the identity of the Panellists on the Advertising Dispute Panel and, where applicable, the Review Panel and Appeal Panel, who will be considering the Complaint.

Either party may object to the inclusion of an individual Panellist if the objecting party has, what in ASC's opinion is, a reasonable apprehension of bias on the part of such Panellist. Such objection must be given in writing to, and received by, ASC within two working days of notice of the Panellists’ identities having been given to the objecting party.

6.2 Bias
(a) ASC may disqualify any person from hearing a Complaint at any level or stage of this Procedure if, in its opinion, either party to an Advertising Dispute pursuant to Paragraph 6.1 above has expressed a reasonable apprehension of bias on the part of such person. Grounds upon which a reasonable apprehension of bias exists would include, but not be limited to the following:

  1. Advertiser representative – if the employing company, or an affiliate of the employing company, of an Advertiser member of the applicable panel, is a party to the Advertising dispute or directly competes in Canada with a party to the Advertising dispute;
  2. Advertising Agency representative – if the Advertising Agency, or an affiliate of the Advertising Agency, which employs the Advertising Agency member, represents, in Canada, one of the parties to the Advertising dispute or a client which directly competes with a party to the Advertising dispute;
  3. Media representative – if a media representative may be unable to arrive at an unbiased decision due to a past or present employment or affiliation;
  4. Legal professional representative – if the professional member, or the law firm of the legal professional member, represents, in Canada, one of the parties to the Advertising dispute or a client that directly competes with a party to the Advertising dispute;
  5. Public representative – if a Public representative may be unable to arrive at an unbiased decision due to a current or previous employment or affiliation.

(b) Each person drawn for service as a Panellist on an Advertising Dispute Panel, a Review Panel or an Appeal Panel will be requested to attest that he or she has no conflict of interest in hearing the Complaint.

6.3 Access to Information Pertinent to a Complaint
Subject to Paragraph 6.6 below, any and all evidence submitted to ASC, either in support of or in defence against a Complaint, will, at the time of the Advertising Dispute Hearing, be shared with the other party to the dispute.

6.4 Provision of Supplementary Materials
ASC may, at any time or times during the Procedure, require one or both parties to an Advertising dispute to provide such supplementary materials that ASC believes are necessary to enable an Advertising Dispute Panel to appropriately assess the merits of the Complaint or its defence and make an informed decision as required by the Procedure. Each providing party will, at its expense, prepare and provide such supplementary materials to ASC for redistribution to the Advertising Dispute Panel and to the other party in the Advertising dispute pursuant to the provisions of Paragraph 6.3 above and 6.6 below.

6.5 Retaining Independent Experts
As evidence submitted in connection with an Advertising dispute may be technical in nature or relate to surveys, tests, studies, polls or other such research information, and since the research methodology and/or design used to obtain the evidence may require validation, ASC may, at any point during the Procedure, seek an assessment of such evidence from one or more independent experts having no conflict of interest in the Complaint.

ASC will, without delay, provide notice to both parties to the Advertising dispute that it intends to call one or more independent experts and will identify the expert(s) selected. Both parties to the Advertising dispute will be entitled to object to the independent expert(s) and request replacement of same by notifying ASC within two working days of such party’s receipt of the notice identifying the expert(s).Such notice shall explain the reasons for the party’s objection. If in the view of ASC the objection is reasonable, it will select one or more alternate experts and notify the parties of his, her or their identity. The parties will have the same opportunity to object to the alternate expert(s) as was provided in relation to the original expert(s) selected.

All costs and expenses incurred by ASC for the independent expert's (or experts') participation in the Advertising Dispute Procedure and assessment of evidence will be recovered by ASC from, and payable by, one or both parties to the Complaint, apportioned as ASC deems appropriate.

ASC may also retain one or more independent experts at the sole expense of the complainant Advertiser if the Advertising Dispute Hearing or Appeal Hearing proceeds in the absence of the defendant Advertiser.

6.6 Deadline for Filing Evidence; Distribution of Filed Materials
Without exception, eight complete duplicate sets of all pertinent evidence to be relied on by each party to a Complaint must be in the possession of ASC at least five (5) full working days prior to the appointed date and time of the Advertising Dispute Panel Hearing. No evidence will be accepted from either party to an Advertising dispute after that deadline unless it is subsequently required by the Advertising Dispute Panel.

The evidence shall not be deemed to be complete unless it also includes a summary statement of the evidence as filed giving as much detail as may be necessary in the opinion of ASC to outline to the other party to the dispute the case which the submitting party intends to present to the Advertising Dispute Panel in order that the other party is reasonably well informed of the evidence to which it may be required to respond and/or refute.

ASC will, without delay, deliver:

(a) to each Panellist on the Advertising Dispute Panel a copy of:
  1. the Complaint;
  2. the detailed evidence; and
  3. each party’s summary statement of evidence; and

(b) to each party to the dispute, a complete copy of the other party’s detailed evidence provided, however, that no evidence provided by the complainant Advertiser will be shared with a defendant Advertiser that does not appear at and/or fully participate in the Advertising Dispute Hearing, or Appeal Hearing, as the case may be.

Subject to the foregoing Paragraph 6.6 (b), no other or new evidence (other than corrections of typographical or clerical errors) will be considered by the Advertising Dispute Panel or the Appeal Panel unless such evidence has been reasonably disclosed to the other party to the dispute in a summary statement, if not in detail. For the purpose of this Paragraph 6.6, whether or not any part of the evidence constitutes "other or new evidence", is a matter that is in the sole discretion of ASC to determine.

6.7 Audio-Visual Equipment
If either party wishes to use audio-visual, telecommunications or other equipment for an Advertising Dispute Panel Hearing or an Appeal Hearing, it must discuss its requirements with ASC at least forty-eight hours prior to the hearing. ASC will use its best efforts to accommodate the request at the expense of the requesting party.

6.8 Confidentiality of the Complaint and the Process
Subject to Paragraph 6.11 below, each party to an Advertising dispute, ASC and all Panellists shall, in writing, agree in advance that they will maintain confidentiality of the Complaint, the information that becomes available throughout the Procedure and the result or disposition of the Complaint.

6.9 Voluntary Withdrawal or Amendment
If a defendant Advertiser, upon being notified of the receipt of a Complaint or at any other point in the Procedure, voluntarily undertakes in a written notice to ASC to withdraw or amend the Advertising at issue to the satisfaction of ASC, and providing the withdrawal or amendment, as undertaken, will occur within not more than ten working days subsequent to the date of such notice from the defendant Advertiser, then the Procedure will be suspended and the Complaint file closed. ASC, however, will have the right to reactivate the Procedure:

(a) if the undertaking is not fulfilled; or

(b) if, acting on the written request of the Advertiser who filed the original Complaint, received by ASC within twelve months of the date of the original Complaint, ASC alone concludes that the subject of the Complaint is of a continuing or repetitive nature, which fact suggests to ASC there is an avoidance of, or a predisposition to the avoidance of, the provision(s) of the Code.

ASC will be entitled to exercise the right, stated in sub-paragraph 6.9(b) above, to reactivate the Procedure in cases where the identical Advertisement(s) to which the Complaint refers is/are repeated. The right may also be exercised by ASC in cases where, in its opinion, one or more of the critical elements of the offensive principal claim(s) or tag line(s) of the original Advertisement, have been replicated in other advertising for the defendant Advertiser.

6.10 Failure to Appear at a Hearing
If either party to an Advertising dispute fails to attend and participate in an Advertising Dispute Panel Hearing or an Appeal Panel Hearing, the Complaint will be decided in the party’s absence based on the information already in the possession of the applicable Panel and any further information submitted at that hearing by the party in attendance.

6.11 Publicizing Case; Identifying Parties to the Complaint
(a) If the parties fail to reach a resolution of the Complaint pursuant to Paragraph 5.3 above, ASC will confirm in writing to each party when and where an Advertising Dispute Hearing will take place.

(b) If the parties reach a resolution of the Complaint as the Procedure provides, or failing a resolution, attend and/or participate at a hearing by an Advertising Dispute Panel and/or Appeal Panel and comply with the applicable Panel's decision, then the identity of the parties, the Complaint and Resolution will remain confidential.

(c) If the Complaint is decided at a hearing by an Advertising Dispute Panel with the defendant Advertiser declining to attend and/or participate; and/or

(d) if ASC has reasonable cause to believe that the defendant Advertiser, after a final decision in the Complaint has been rendered by the applicable Panel, is not complying with the decision that was unfavourable to the defendant Advertiser, or will not comply with such decision, then ASC will publish in such manner as ASC deems appropriate, a summary of the outcome of the initial hearing and any appeal hearings. This will include the facts and issues in dispute, an identification of the parties and a description of the advertising in question.

(e) In addition to taking the steps described in Paragraph 6.11(d) above, ASC, in such manner and at such time or times as ASC deems appropriate, will:

  1. first require from the complainant Advertiser its agreement to provide appropriate and adequate evidence at complainant's expense to support its claim if, as a consequence of a Panel's decision, litigation ensues against ASC;
  2. refer publically to the defendant Advertiser's unwillingness to participate and/or comply;
  3. advise the exhibiting media of the fact recited in Paragraph 6.11(e)(ii) above;
  4. notify the Competition Bureau or its [successor(s)] of the fact recited in Paragraph 6.11(e) (ii) above and the other matters recited under Paragraph 6(d) above.

(f) A defendant Advertiser that has declined to attend at or participate in a hearing by an Advertising Dispute Panel may, nonetheless, appeal a decision by the Advertising Dispute Panel by:

  1. following the provisions of the Procedure that relate to appealing an Advertising Dispute Panel's decision; and by
  2. agreeing, in such form as ASC may request, to submit, without reservation, to the provisions of the Advertising Dispute Procedure in the instant case and any other cases brought in the future against the advertiser under the Advertising Dispute Procedure or under the Consumer Complaint Procedure; and, in either or both cases;
  3. also agreeing to comply with future decisions of a Panel or Council that may be unfavourable to the defendant Advertiser.

6.12 Uniformity of Procedure
Members of Advertising Dispute Panels, Review Panels and Appeal Panels will use their reasonable best efforts to maintain uniformity in procedure and in reaching decisions.

6.13 Advertising Dispute Fees
These are set out in the Fee Schedule found on ASC’s website (www.adstandards.com). The Fees are based on conducting the proceedings in English at ASC's Toronto office. The cost of holding meetings or hearings in venues outside ASC's Toronto office, or providing special equipment or services such as, but not limited to, providing translation services or teleconferencing and/or audio visual equipment not currently owned by ASC, will be charged to the requesting party at its sole expense.