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ARTICLE · 07 MARCH 2014

In Advertising, Silence Can Be Golden - Or At Least Not Actionable

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The Court of Appeal for Ontario, in a case involving an application to certify a proposed misleading advertising class action with respect to front loading washing machines, determined that the matter should not be certified as a class action.

CanadaLitigation, Mediation & Arbitration
James Musgrove
James Musgrove
Daniel Edmondstone
Daniel Edmondstone
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The Court of Appeal for Ontario, in a case involving an application to certify a proposed misleading advertising class action with respect to front loading washing machines1, determined that the matter should not be certified as a class action. The case provides comfort for advertisers that they need not publicize all problems associated with their products.

It was alleged that Whirlpool negligently designed its early front loading machines, such that they were prone to developing an unpleasant smell as a result of mold and fungus ("bio-film") build up. Various causes of action were alleged, including breach of the express warranty provided by the manufacturer; breach of the implied warranty of fitness for purpose under the Sale of Goods Act; breach of the misleading advertising provision of the Competition Act; economic loss for negligent design of a non-dangerous consumer product; and waiver of tort.

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