Procedural Note 1: Filing a Complaint
Under Section 1 of the Advertising Dispute Procedure (Procedure), the complainant advertiser’s initial submission must meet several criteria in order to be accepted by Ad Standards. This note is intended to provide clarity regarding what is necessary to meet these requirements.
All capitalized terms have the same meaning as set out in the Procedure.
I. What is the initial case that must be made in the Complaint? What are “prima facie reasonable grounds”?
While the Code places an obligation on the Advertiser to substantiate its claims, under the Procedure the Complainant must show reasonable grounds for any challenge before a Complaint will be accepted by Ad Standards.
Under Section 1.7 of the Procedure, one condition precedent to Ad Standards accepting a Complaint is that: “Ad Standards finds in the as-filed Complaint what, in the opinion of Ad Standards, are prima facie reasonable grounds under the provisions of the [Procedure] for proceeding with the Complaint...”
The meaning of “prima facie reasonable grounds” is best understood in conjunction with Paragraph 1.1 which requires that that the Complaint be “complete with all the evidence … on which the complainant advertiser is relying” and that the Complaint “specify the provisions of the [Code] which, allegedly, are contravened by the defendant advertiser’s advertising.”
When read together, these provisions require the complainant advertiser to put its best case forward from the outset. The complainant advertiser must do more than make unsubstantiated allegations in its Complaint. Instead, it either must show that it has credible and reliable evidence, or outline a specific basis for the challenge, which casts reasonable doubt as to the compliance of the Advertising in question with the Code. The bar is not high, but the Complaint must consist of more than a call for the defendant advertiser to defend its Advertising. Since no additional evidence may be filed after the initial Complaint, the complainant advertiser is encouraged to be thorough and complete in its submission.
II. What will be accepted as confirmation of a good faith attempt to resolve the dispute?
Section 1.3 of the Procedure requires that the Complaint be accompanied by written confirmation to Ad Standards’ satisfaction “that the complainant advertiser has made a good faith attempt to resolve the disputed issues with the defendant advertiser, but without success”. The Procedure does not specify what the form or content of this confirmation must be.
Ad Standards prefers to receive (i) a copy of clean correspondence sent from the complainant advertiser to the defendant advertiser at the conclusion of such good faith efforts, specifying the advertisement(s) and claim(s) still in contention and the efforts made to resolve the dispute; and (ii) either the defendant advertiser’s response that the advertising will not be withdrawn or amended to the complainant advertiser’s satisfaction, or the complainant advertiser’s confirmation that no response was received in a timely manner. In this way, Ad Standards can be satisfied that the parties have engaged in good faith attempts to resolve issues covering the full scope of claims and Advertising that are raised in the Complaint.
Other forms of written confirmation may be accepted on a case-by-case basis.
Ad Standards discourages the complainant advertiser from including with the Complaint copies of the full history of correspondence between the parties. Ad Standards may, at its sole discretion, remove or redact from the Complaint such records of exchanges from the Complaint prior to forwarding it to the Ad Dispute Panel.
III. What happens to the Complaint Filing Fee if a Complaint is not accepted by Ad Standards?
The Complaint Filing Fee is not refundable. If a Complaint is not accepted by Ad Standards, the fee will not be refunded to the complainant advertiser. In the rare instance where this occurs, the Procedure does not preclude the complainant advertiser from revising or augmenting its Complaint to resubmit to Ad Standards. Ad Standards will consider requests to allow the same Complaint Filing Fee to apply to its assessment of a revised Complaint, provided that it is resubmitted in a timely manner (e.g. within 10 days of the original Complaint).
If the revised Complaint is substantially different from the original, or if the revised Complaint is not resubmitted in a timely manner, then Ad Standards will require a new Complaint Filing Fee from the complainant advertiser.
|Note: Ad Standards’ staff are currently working remotely. Until a regular return to the office is established, we recommend that Complaints be filed by email to Ad Standards’ Chief Legal Officer. Complainant advertisers should contact Ad Standards in advance by telephone or email to arrange payment of the Complaint Filing Fee. Couriers may not be able to make deliveries to the office when no one is there, and materials sent by mail may be delayed when rerouted.|