COMPETITION TRIBUNAL TRJBUNAL DE LA CONCURRENCE p F r· It L ~~e 22 2006 vdl- _g E U D I REiOISTRAR • REGISTRAIRf T onAWA, ON 1#000 I THE COMPETITION TRIBUNAL IN THE MATTER of the Competition Act, R.S.C. 1985, e, C-34 as amended; AND IN THE MATTER of an inquiry commenced pursuant to section 10 of the Competition Act into the alleged deceptive marketing practices of Strategic Ecomm Inc
AND IN THE MATTER of the filing and registration of a Consent Agreement pursuant to section 74J2 of the Competition Act.
BETWEEN: Registry n! f:e Competition Tribunal THE COMMISSIONER OF COMPETITION Greffe dt! Trli>unal de la concurrence Applicant REGISTEl~t:D I ENllCGISTnf:
He -and-22 2006 Respondents CONSENT AGREEMENT WHEREAS the Commissioner of Competition (the "Commissioner") is head of the Competition Bureau (the "Bureau") and is responsible for the administration and the enforcement of the Competition Act (the "Act"), including SUBSECTION 74.01(1), SECTION 74.02 AND SUBSECTION 74.01(3) contravened by the Respondents Matthew Hovila and Strategic Ecomm Inc.
AND WHEREAS the Respondent, Strategic Ecomm Inc. is a corporation incorporated under the laws of the Province of Alberta, and the Respondent, Matthew Hovila, is a resident of the province of Alberta and the principle shareholder and director of Strategic Ecomm Inc.;
AND WHEREAS the Respondents operate www.governmentaljobs.com, promoting the sale of internet resume distribution services to the public in Canada and around the world.
AND WHEREAS on April 29, 2003, the Commissioner commenced an inquiry (the "Inquiry") pursuant to section 10 of the Act into certain marketing practices of the Respondents, notably an allegation that the Respondents made false and misleading representations to the public through two internet websites www.oilcareer.com and www.governmentaljobs.com.
the websites www.oilcareer.com and
AND WHEREAS the Commissioner concluded that from September 23, 2002 and continuing until at least May 30, 2005, the Respondents made materially false and misleading representations to the public in the promotion of an on-line resume distribution service on the internet websites www.oilcareer.com and www.governmentaljobs.com, specifically with regards to the distribution of customers' resumes, the size and scope of the business, the identity and number of potential employers to which resumes were distributed, the relationship that the Respondents enjoyed with the potential employers, an endorsement by an independent watchdog agency, the price at which the services are ordinarily sold, and the availability of either a risk free guarantee or a money back guarantee, contrary to paragraphs 74.0l(l)(a), and 74.0l(l)(c) of the Act;
AND WHEREAS the Commissioner concluded that from September 23, 2002 and continuing until at least May 30, 2005, the Respondents provided, in the promotion of the resume distribution services, testimonial statements ("testimonials") of alleged past customers without establishing that the testimonials were previously made nor having received written permission from the persons making the testimonials before having the testimonials published on the www.oilcareer.com and www.govemmentaljobs.com websites, contrary to section 74.02 of the Act;
AND WHEREAS the Commissioner concluded that from September 23, 2002 and continuing until at least May 30, 2005, the Respondents made representations to the public on the internet websites www.oilcareer.com and www.govemmentaliobs.com relating to a higher regular selling price at which its resume distribution services are ordinarily offered for sale, in combination with a time-limited reduced price, without having provided substantial volumes of its resume distribution services at the higher price, nor having offered its resume distribution services for a substantial period of time at the higher price, contrary to subsection 74.01(3) of the Act;
AND WHEREAS the Parties agree that the Respondents engaged in reviewable conduct pursuant to Sections 74.0l(l)(a), 74.0l(l)(c), 74.02, and 74.01(3) as referred to above.
AND WHEREAS the Parties are satisfied that this matter can be resolved with the registration of this Consent Agreement;
AND WHEREAS Matthew Hovila and Strategic Ecomm Inc., its officers, directors and employees are committed to compliance with the Act generally, and specifically; provisions found in Part VIl.l of the Act.
AND WHEREAS the Commissioner and the Respondents agree that upon the signing of this Consent Agreement, the Parties shall file the Consent Agreement with the Competition Tribunal for immediate registration;
AND WHEREAS the Commissioner and the Respondents understand that upon registration, this Consent Agreement shall be enforceable as if it were an order rendered by the Competition Tribunal pursuant to section 74.12 of the Act;
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NOW THEREFORE in order to resolve the Commissioner's Inquiry referred to above, the Parties hereby agree as follows;
I. INTERPRETATION 1. For the purpose of the Agreement, the following definitions shaJI apply: a. "Affiliate" shaJI have the meaning ascribed to it in the Act; b. "Agreement" means this Consent Agreement; c. "Commissioner" means the Commissioner of Competition, appointed pursuant to section 7 of the Act, and her authorised representatives;
d. "Strategic Ecomm Inc." means the Respondent Strategic Ecomm Inc., a corporation incorporated under the laws of the Province of Alberta, carrying on business on the internet, on the websites www.oilcareer.com and www.govemmentaljobs.com and any subsidiary corporation within the meaning of subsection 2(3) of the Act;
e. "Strategic Ecomm Inc. personnel" means all current and future officers and directors of Strategic Ecomm Inc., and any present and future employees materially involved in the formulation and/or the implementation of advertising, marketing or pricing policies, including the Respondent Matthew Hovi la;
f. "Parties" means the Commissioner of Competition, Strategic Ecomm Inc. and Matthew Hovila;
g. "Person" means any individual, partnership, finn, corporation association, trust, unincorporated organization or other entity;
h. "Products" means services supplied and sold by Strategic Ecomm Inc., related persons and Strategic Ecomm Inc. personnel;
1. "Related Person" means Strategic Ecomm Inc., any present or future person with control of Strategic Ecomm Inc., and any present or future directors and officers of Strategic Ecomm Inc. including the Respondent Matthew Hovila; and
J. "Tribunal" means the Competition Tribunal established by the Competition Tribunal Act, R.S. 1985, c. 19 (2nd Supp.), as amended.
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11. APPLICATION 2. The provisions of the Agreement shall apply to: a. The Respondents Matthew Hovila, and Strategic Ecomm Inc. and its subsidiaries, its affiliates and successors, Strategic Ecomm Inc. personnel and any related person.
b. The Commissioner. 3. The Respondents, any related person and Strategic Ecomm Inc. personnel shall comply with the following provisions of the Act:
74.01(1) A person engages in reviewable conduct who, for the purpose of promoting directly or indirectly, the supply or use of a product or for the purpose of promoting, directly or indirectly, any business interest, by any means whatever, (a) makes a representation to the public that is false or misleading in a material respect; (b) makes a representation to the public in the form of a statement, warranty or guarantee of the performance, efficacy or length of life of a product that is not based on an adequate and proper test thereof, the proof of which lies on the person making the representation; or ( c) makes a representation to the public in a form that purports to be (i) a warranty or guarantee of a product, or (ii) a promise to replace, maintain or repair an article or any part thereof or to repeat or continue a service until it has achieved a specified result, if the form of purported warranty or guarantee or promise is materially misleading or if there is no reasonable prospect that it will be carried out.
74.01(3) A person engages in reviewable conduct who, for the purpose of promoting, directly or indirectly, the supply or use of a product or for the purpose of promoting, directly or indirectly, any business interest, by any mean whatever, make a representation to the public as to price that is clearly specified to be the price at which a product or like products have been, are or will be ordinarily supplied by the person making the representation where that person, having regard to the nature of the product and the relevant geographic market, (a) has not sold a substantial volume of the product at that price or a higher price within a reasonable period of time before or after the making of the representation, as the case may be; and (b) has not offered the product at that price or a higher price in good faith for a substantial period of time recently before or immediately
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after the making of the representation, as the case may be. 74.02 A person engages in reviewable conduct who, for the purpose of promoting, directly or indirectly, the supply or use of any product, or for the purpose of promoting, directly or indirectly, any business interest, makes a representation to the public that a test has been made as to the performance, efficacy or length of life of a product by any person, or publishes a testimonial with respect to a product, unless the person making the representation or publishing the testimonial can establish that (a) such a representation or testimonial was previously made or published by the person by whom the test was made or the testimonial was given, or (b) such a representation or testimonial was, before being made or published, approved and permission to make or publish it was given in writing by the person by whom the test was made or the testimonial was given, and the representation or testimonial accords with the representation or testimonial previously made, published or approved.
4. Without limiting the general responsibility of the Respondents to comply with the Act, it is also agreed that the Respondents, any related person, or any Strategic E-Comm Inc. personnel shall not make, cause to be made, nor permit to be made on their behalf, any representation whatsoever in Canada or available to consumers in Canada or elsewhere by any means whatsoever, including via the internet, which are false or misleading in a material respect with respect to online services, including, but without limiting the generality of the foregoing, any representation that is false or misleading in a material respect relating to:
(a) The number of employers to which resumes are forwarded; (b) The identity and existence of the employers to which resumes are forwarded; (c) The fact that customers' resumes are distributed to employers; (d) The relationship of the Respondents to employers as a recruiter for specific job postings; (e) The efficacy of the Respondents' customer placement services; (f) The endorsement as a consumer safe internet website by independent watch-dog agencies; (g) The application deadline dates for submission of customers' resumes; (h) The price at which the Respondents' resume distribution services are regularly sold or offered for sale; (i) A warranty or guarantee which leads customers to believe payment of money is in fact risk free, in that, their money wi 11 be refunded; (j) Representations or statements purported to be customer testimonials; -5-
5. After the registration of this Consent Agreement, and for a period of 6 months thereafter, the Respondents, shall notify the Commissioner of any material changes to the W\Vw.oilcareer.com or www.governmentaljobs.com websites, 2 days in advance of any such material changes becoming accessible by the public. Further, the Respondents, and/or any present or future director or officer of Strategic Ecomm Inc. shall for a period of 24 months following registration of this Consent Agreement notify the Commissioner of any new commercial websites where any Strategic Ecomm Inc. personnel or related persons has control. For the purposes of this notification, the Respondents, and/or any director or officer of Strategic Ecomm Inc. shall provide the Commissioner with the website address of the new commercial website.
A. CORPORATE MONETARY PENALTY 6. The Respondents shall pay an administrative monetary penalty m the amount of $ 100,000.00 (one hundred thousand dollars).
B. FORM OF PAYMENT 7. The payment referred to in paragraph 6 above shall be made forthwith, and no later than the point of execution or registration of the Agreement and shall be in certified funds, or cashier's cheque.
C. CORRECTIVE NOTICE 8. The Respondents shall, within 12 days of the date of registration of this Agreement, publish a notice (the "Notice") of this Agreement as set out in Appendix "A"of the Agreement, in a style and manner as described in Appendix "C" of this Agreement.
9. The Respondents shall, upon publishing the Notice referred to in paragraph 8, confirm in writing to the Commissioner that the Notice was published as described in Appendix "C" of the Agreement.
10. The Respondents shall include a link on the website addresses www.oilcareer.com and www.govemmentaljobs.com as described in Appendix B to this Agreement. This link will direct internet users to a copy of the Notice as provided in Appendix A to this Agreement from the date of registration of this Consent Agreement until a date six months after the registration of this Agreement.
D. FAILURE TO COMPLY 11. A failure to comply with the terms of this Agreement by the Respondents, any affiliates of Strategic Ecomm Inc., Strategic Ecomm Inc. personnel or any Related Person shall be deemed to be a breach of this Agreement.
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E. COPIES OF THE AGREEMENT 12. The Respondents and any entity for which they have defacto or de jure control, shall provide a copy of the Agreement in its entirety to all current and future Strategic Ecomm Inc. personnel, any related person, within 10 days of the execution of the Agreement.
F. TERM OF AGREEMENT 13. Unless otherwise specified, this Agreement shall be binding upon the Respondents, any affiliates of Strategic Ecomm Inc., Strategic Ecomm Inc. personnel and any Related Person as defined herein for a period of 10 years following the date of registration of this Agreement.
III. NOTICES 14. Notices pursuant to the Agreement shall be given to the Parties at the following addresses or facsimile numbers:
(a) The Commissioner Attention: Mr. Raymond Pierce Deputy Commissioner of Competition Competition Bureau Place du Portage, Phase 1, 50 Victoria Street Gatineau (QC) K 1A OC9
Telephone: (819) 997-3301 Facsimile: (819) 953-5013
(b) The Respondents Matthew Hovila President of Strategic Ecomm Inc. 926 Thompson Place Edmonton, Alberta T6R 3K4
Telephone: (780) 490-0591 Facsimile: (780) 490-0591
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IV. GENERAL 15. The Agreement shall be governed by and interpreted in accordance with the laws of the Province of Alberta and the federal laws of Canada applicable therein.
16. For greater certainty, the Tribunal shall retain jurisdiction for the purpose of any application by the Commissioner or the Respondents to rescind or vary any of the provisions of the Agreement in the event of a change of circumstances or otherwise pursuant to section 74.13 of the Act, or with respect to any issue concerning the Agreement with the exception of matters contained in paragraphs 6 and 7 above.
17 . In the event of a dispute as to the interpretation or application of the Agreement, including any decision by the Commissioner pursuant to the Agreement or breach of the Agreement by the Respondents, either of the Parties shall be at liberty to apply to the Tribunal for an order interpreting any of the provisions of the Agreement.
18. In the event that the Tribunal varies in a material respect, the substantive terms of the Agreement or rescinds the Agreement pursuant to section 74.13 of the Act, the Respondents or the Commissioner, with the exception of matters contained in paragraphs 6 and 7 above, shall each have the right to terminate the Agreement by written notice to the other Party hereto given within 21 days of the date on which such order is made.
The undersigned hereby agree to the registration of this Consent Agreement. DATED at Edmonton, in the Province of Alberta this ~'f\ day of µ_ b/v•Vj ,2006. President for: Strategic Ecomm Inc., Matthew Hovila D atGo..~tV\eAA., , in the Province of _@ue.,.\oec._ this 2.2...day of ~B.,2006. mood Pierce Deputy Commissioner of Competition
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fj Witn::# ,----t":f-~ Witne
Appendix "A" NOTICE RE: STRATEGIC ECO MM INC. RESUME DISTRIBUTION SERVICES The Competition Bureau (the "Bureau"), Matthew Hovila and Strategic Ecomm Inc. have agreed that between the period September 23, 2002 and May 30, 2005 certain marketing practices of Strategic Ecomm Inc. raised issue with the false and misleading, testimonials and ordinary selling price provisions of the Competition Act. The Commissioner concluded, and Matthew Hovila and Strategic Ecomm Inc. have agreed to having engaged in reviewable conduct by having made false and misleading representations to the public in the promotion of online resume distribution services on the internet websites www.oilcareer.com and www.governrncntaljobs.com specifically relating to:
distribution of customers' resumes; the size and scope of the business; the identity and number of potential employers to which resumes were distributed; the relationship that Strategic Ecomm Inc. enjoyed with potential employers; endorsement by an independent watch dog agency; ordinary selling price; availability of a risk free or money back guarantee; not having received written permission from clients providing testimonials.
Matthew Hovila, Strategic Ecomm Inc. and the Bureau, in recognition of the reviewable conduct, the Bureau's concerns, and the importance of providing accurate infonnation to consumers, have filed a Consent Agreement (the "Agreement") with the Competition Tribunal. Pursuant to the Agreement, Strategic Ecomrn Inc. shall among other things:
pay an administrative monetary penalty; discontinue the reviewable conduct on both \V\vw.oilcareer.com and www.governmentaljobs.com websites; provide notice of this agreement to the public.
The Consent Agreement can be found on the Competition Tribunal's web site at www.ct-tc.gc.ca. For additional information, consult the Bureau's website at www.competitionbureau.gc.ca.
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Appendix "B" The Respondents are to publish the Notice, as it appears in Appendix "A" of the Agreement, on each of the following websites:
www.oilcarcer.com, and www.governmentaljobs.com.
Publication of the Notice on the websites shall occur as part of any proposed conduct pursuant to paragraphs 5 and 10 of this Agreement.
The Notice shall remain on the websites for a period as described in paragraph 10 of this Agreement.
The Notice shall be accessible through a link on each website homepage entitled 'Competition Bureau Canada Notice' in no less than 10 point font unembellished print.
The link to the Notice shall be situated on each website home page such that it is visible when the websites are first accessed, without the need to scroll down the home page.
The Notice shall have a link to the Competition Tribunal web site at www.ct-tc.gc.ca and to the Competition Bureau web site at www.compctitionbureau.gc.ca.
The Notice shall take up a full screen size of the linked page. The text of the Notice shall appear in no less than 10-point font unembellished print. The title of the Notice, as set out in Appendix "A" of the Agreement, shall be capitalized and appear in no less than 12-point bold font unembellished print.
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Appendix "C" The newspapers in which the Respondents are to publish the Notice identified in Appendix "A" of the Agreement include the following:
Calgary Herald Calgary Sun Edmonton Journal Edmonton Sun The Respondents shall commence the publishing of the Notice within 12 days of the registration of the Agreement;
I. The Respondents shall publish the Notice as set out in Appendix "A" of the Agreement in the Saturday editions of each of the newspapers named above for period of 2 consecutive weeks. The Respondents shall obtain publication space in accordance with the following hierarchy of special availability, and every effort shall be made to obtain publication space in the following order of priority:
I. within the first 10 pages of the cover section; 2. within the first 5 pages of the Business or Careers section; TI. The Notice shall appear in a space no less than 4.5 inches x 6 inches in size when published in the newspapers named above;
III. The title of the Notice as set out in Appendix "A" of the Agreement, shall be capitalized and shall appear in 16-point bold font unembellished print; and
IV. The text of the Notice shall appear in 10-point font unembellished print in the newspapers named above.
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