Case Documents

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CT-2023-003

THE COMPETITION TRIBUNAL

IN THE MATTER OF the Competition Act, R.S.C. 1985, c. C-34, as amended;

AND IN THE MATTER OF an application by the Commissioner of Competition for an order pursuant to section 74.1 of the Competition Act and subsection 74.01(1.1) of the Competition Act;

BETWEEN:

COMMISSIONER OF COMPETITION

– and –

CINEPLEX INC.

Applicant

Respondent

AFFIDAVIT OF JAY ECKERT (AFFIRMED JANUARY 5, 2024)

1. My name is Jay Eckert. I am the founder and creative director at Parachute Design Group Inc. I earned my graphic design diploma after completing the three-year program at Seneca Polytechnic (formerly Seneca College). In 2007, I became a Registered Graphic Designer by completing the required testing, portfolio interview and world experience required by The Association of Graphic Designer (CGD) designation from The Association of Design Professionals of Canada.

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2. I have been asked by the Commissioner of Competition to provide my opinion and analysis relating to the Commissioner’s Notice of Application against Cineplex Inc.

3. I attached as Exhibit “A” to this affidavit my report setting out my opinion.

4. I attached as Exhibit “B” to this affidavit my Acknowledgement of Expert Witness.

Affirmed remotely by Jay Eckert ) stated as being located in the City of ) Toronto in the Province of Ontario, before ) me at the City Of Ottawa in the Province of ) Ontario on January 5, 2024 in accordance ) with O. Reg. 431/20, Administering Oath ) or Declaration Remotely ) ) ) ) _________________________________ ) _______________________ Commissioner for Taking Affidavits ) Jay Eckert ) ) )

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_____________________________________ This is Exhibit “A” to the affidavit of Jay Eckert, affirmed remotely and stated as being located in the city of Toronto in the province of Ontario, before me in the city of Ottawa in the province of Ontario, on January 5, 2024, in accordance with O. Reg 431/20, Administering Oath or Declaration Remotely.

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Commissioner of Competition v. Cineplex Inc. (CT-2023-003) Expert Report by Jay Eckert, RGD, CGD

January 5, 2024

Background and Experience

1. My name is Jay Eckert. I am the founder and creative director at Parachute Design Group Inc. I earned my graphic design diploma after completing the three-year program at Seneca Polytechnic (formerly Seneca College). In 2007, I became a Registered Graphic Designer by completing the required testing, portfolio interview and work experience required by The Association of Registered Graphic Designers of Ontario (RGD). In 2021, I received my Certified Graphic Designer (CGD) designation from The Association of Design Professionals of Canada.

2. For 21 years, I have worked with organizations and brands across North America and Europe to create award-winning websites and application interfaces through my design consultancy, Parachute Design Group Inc., and various web design agencies early on in my career.

3. Under my guidance, Parachute Design Group Inc. has received several awards and commendations over the years, most recently including the Top Web Designers in Canada 2023 by Clutch1, a Gold 2023 Canadian Marketing Award2 (for our work Bennett Jones LLP Centennial Celebration Website) and ranked as

1 Top Web Designers in Canada 2023, Clutch – Agencies that Deliver: https://clutch.co/ca/web-designers/leaders-matrix 2 Gold 2023 Canadian Marketing Award (Business): https://thecma.ca/get-involved/cma-awards/2023-winners

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one of the 15 Best Digital Marketing Companies in Canada in 2022 3 by The Tech Blog Digital Marketing. Many of my thought leadership articles on user experience and website design are featured in various digital publications. 4 In 2021 I was featured in Swagger Magazine’s Self-Made Men Cover Story and Featurette to share my story as a design leader in North America’s web design industry. 5

4. My web design consultancy works with many notable brands across Canada and the United States, including the Juno Awards, Go RVing Canada, Coke Canada, Flo, McMillan LLP, Bennett Jones LLP and the Government of Ontario. Our partnership with clients includes branding, website design and development and ongoing design and technical support to ensure their digital marketing goals are met as technology and audience behaviour evolves.

5. As Creative Director at Parachute Design Group Inc. I lead website design projects from conception through final deployment and ongoing analysis of website performance and conversion rate optimization to provide continued modifications and adaptations to the websites to improve user experience and overall performance. My core areas of expertise, include:

a. Discovery and Strategy: I lead the Discovery Phase of all website design and development projects to explore and analyze website analytics and competitive analysis to understand user behaviours, technologies and expectations when using our clients’ websites and related digital marketing assets.

3 15 Best Digital Marketing Companies in Canada in 2022, The Tech Blog: https://www.thetechblog.org/digital-marketing-companies-in-canada/ 4 Featured in Top Interactive Agencies: https://www.topinteractiveagencies.com/digital/agency/founders-ceos/jay-eckert-we-are-situated-in-one-of-the-fastest-growing-ai-and-technology-markets/, Best Startup Canada – The Canadian Startup Magazine: https://beststartup.ca/jay-eckert-beautiful-hand-crafted-website-design-and-branding-for-companies-around-the-world/. 5 Self Made, Swagger Magazine 2021: https://www.swaggermagazine.com/home/selfmade/jayeckert/

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b. User Experience Design (UX Design): also known as wireframing, is the process of designing low-fidelity blueprints to establish information architecture on a web page. More simply put, UX Design is a method of determining which information the web user will see and when they will see specific information in their journey throughout the website to optimize conversions.

c. Conversion Rate Optimization (CRO): Conversion rate optimization is the practice of increasing the percentage of users who perform a desired action on a website. Desired actions can include purchasing a product, clicking 'add to cart,' signing up for a service, filling out a form, or clicking on a link. Using a combination of user analytics data, design fundamentals and UX Design best practices, my role in guiding the conversion rate optimization process focuses on presenting a conceptual design or modifying an existing interface design to increase the number of conversions.

d. User Interface Design (UI Design): is the process that designers use to build high-fidelity interfaces for software or computerized devices, including websites and mobile applications. The UI Design process relies on the information architecture and UX Design developed in the strategy phase of a project to inform the final interface design that web or application users will see and interact with on the website or mobile application.

6. I also manage the website design and development teams to monitor quality assurance while coordinating client communications and general project management.

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Assignment

7. I have been asked to answer the following questions:

a. Question 1: Explain your area of expertise, and what role this area of expertise has when it comes to developing commercial websites or mobile applications such as those used by Cineplex.

b. Question 2: In your opinion, what and how would a website or mobile application like those used by Cineplex know about the size of a consumer’s screen when displaying content for each consumer.

c. Question 3: Provide your opinion on how websites are generally designed so as to take into account consumer’s screen sizes when deciding the layout of web pages, such as the “Tickets Page” of Cineplex.com and Cineplex Mobile.

d. Question 4: Explain the concept of above and below the fold, and how it factors into decisions for web designers when designing the user experience on websites such as Cineplex.com and Cineplex Mobile. In answering, please explain the concepts of call-to-action (including their placement), scrolling, and conversions.

e. Question 5: Provide your opinion on whether the website design on the Cineplex.com and Cineplex Mobile “Tickets Page” encourages consumers to scroll down below the fold?

f. Question 6: Provide your opinion on whether it is technically possible to initially display the price of a movie ticket with the price of the Online Booking Fee (OBF) included when the OBF is capped at a maximum of

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four movie tickets per transaction before any movie tickets are added to the basket. If so, how would you design this?

g. Question 7: Beyond including the OBF in the price of a movie ticket, what else could have been done from a website design perspective to enhance the awareness of the existence and amount of the OBF?

h. Question 8: Is the countdown timer on the “Tickets” page technically necessary?

8. I have attached my letter of instructions as Appendix A.

9. I was provided with the transcripts from the examination for discovery of Cineplex’s representative Daniel McGrath along with the Cineplex documents referenced and exhibits to the examination, answers to undertakings and answers to follow up questions.

The Role of Analytics in User Experience Design

10. Various tools and applications are available to capture analytics across digital platforms, including websites and mobile applications. Commonly used platforms include Google Analytics and Plausible, while more advanced analytics platforms such as Adobe Analytics are available.

11. Analytics are a vital tool for user experience designers to make informed decisions about user behaviour, user technology and screen dimensions (also known as viewport) and where to place information within each page or screen to communicate most effectively within the web page or application interface. Analytics refers to the collection, measurement, analysis, and reporting of important data about website and mobile application visitors and their interactions with the website or application. To study a group of users for a

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website or application, the designer will examine the audience, which is defined as a collection of all previous visitors to the web page or application.

12. For UX designers and web designers, website analytics are crucial for several reasons:

a. Understanding User Behaviour: Analytics provide insights into how users navigate the website or application. Designers can see which pages are most popular, where users tend to drop off, or which elements they interact with the most. This information helps in understanding user behaviour patterns and where to place important information within the page architecture.

b. Identifying Pain Points: By analyzing user interactions, designers can pinpoint areas where users might face difficulties or encounter obstacles. For instance, if a significant number of users drop off at a particular stage of a checkout process, it indicates a potential issue that needs to be addressed in the design or messaging on a specific page. Using analytics data, designers can make informed decisions to improve the overall user experience and how a page or screen communicates with the viewer. Designers may adjust the page layout, content, or functionality of the website or application to better align with user preferences and behaviours. For example, if analytics show that a certain feature is rarely used, designers might consider removing it to declutter the interface.

c. Responsive Design: Analytics also reveal the devices and technologies users employ to access the site – whether on a desktop, mobile phone, or tablet, and which browsers or operating systems they use. This information is vital to inform designers in creating responsive designs that cater to various devices and screen sizes. This data is the designer’s most important metric available to understand audience behaviour and technical

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limitations or expectations. This data includes various metrics such as user’s geographical location, the pages they visit, the time they spend on each page, the actions they take (clicks, downloads, or form submissions), and the screen dimensions or viewport measurement of the devices or browsers they use to access the website or application.

d. Content Strategy: Knowing which pages or content users engage with the most assists in shaping content strategy. Designers can prioritize or rework content based on what users find most valuable, ensuring the most critical information is easily accessible.

13. In essence, website analytics serve as a compass for UX and web designers, guiding them to make data-driven decisions that enhance the user experience, streamline navigation, and optimize the design for placement of content and information to meet the audience’s needs, preferences and expectations.

UX Strategy and Web Page Design

14. A web page in its simplest form is a digital space on the internet, similar to a page in a book or a piece of paper. However, instead of being a physical object, it's something intangible you can see and interact with on your computer, mobile phone, or tablet screen. When web designers consider creating a web page that will work well on different devices ranging from large format displays to laptop computer screens or smaller mobile phone screens, they utilize the concept of "responsive design.” Responsive design is a methodology that allows the web designer to create a consistent interface design and user experience that will adapt in real-time to the screen size and dimensions of the device the user loads the web page on. The fundamental principle of responsive design is to plan for and control what the web user sees on any device they use to access to the website.

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15. To achieve a responsive design, modern web pages are built in a such a way that relies on special coding to make the user interface flexible. In concept, it's a bit like a rubber band that stretches or shrinks depending on the screen size. Pictures, text, and other media on the page can change their size and layout in real-time to ensure they fit neatly, no matter how big or small the screen is.

16. To understand responsive design, you may visit a website on your laptop and resize the web browser. You will notice that the web page components and general layout will adjust their position on the screen and even scale up or down in size to accommodate the change in browser dimensions. If you open the same website on your mobile phone you will notice that everything you see on your laptop rearranges itself to fit neatly within the smaller mobile phone screen. Text might get a bit smaller, or pictures might stack on top of each other instead of sitting side by side. This format adjustment makes it easier for the viewer to read and navigate the site without zooming in and out or scrolling sideways.

17. The flexibility and freedom that responsive design provides to web designers allows them to utilize the entire screen, edge-to-edge, and top-to-bottom to make data-driven decisions on how to structure information on the page for any screen size or device.

Discovery and Analytics Research

18. When a web designer undertakes a new design for a website, the first step in the web design process is analyzing the analytics data to collect important information about the people that have used the existing website to understand their behaviours and technologies they used to access the website.

19. Understanding user behaviour allows the designer to make educated decisions about navigational design and establish information hierarchy based on users interests and navigational patterns evident in the analytics. Understanding the

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technology used by the audience to visit the website is equally important in designing the user experience as these metrics provide clear insight as to which screen dimensions or screen resolutions are most commonly used to access the website. Using the largest common audience metrics will dictate the primary screen resolution the web designer focuses their design strategy on. This strategy will focus on where content is placed within each page of the website to ensure that the most important information is visible to the most viewers without requiring the user to perform additional actions after the page has loaded, including scrolling or clicking to open additional content.

The UX Design Process

20. Once the web designer understands their audience’s behaviours and the technology used to access the current website, the designer will create a site map to plan out the navigation within the new website. The site map will serve as a map to indicate where each page within the website will live within the navigational flow and how pages will be linked together.

21. Next, the web or UX designer will design a complete set of wireframes. The wireframes serve as a blueprint for each unique page type within the website. The purpose of the wireframing exercise is to carefully plan out the information architecture of each web page and determine where all information and calls-to-action will be displayed in a specific location for the viewer.

22. Call to action (CTA) is a marketing term for any design to prompt an immediate response or encourage immediate action, usually resulting in the generation of a sales lead or sale of a product or service. A CTA most often refers to the use of words or buttons that are incorporated into advertising materials or web pages, which compel the audience to act in a specific way.

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23. The decisions made during this phase of the website design project are crucial as they lay the foundation for how the website will communicate with all visitors, what information they will see, and what actions they will be prompted to take to convert.

24. It is important to note that the UX Design process is iterative during the strategy phase of any web design or mobile application interface design project as the designer and website owner review and discuss possible layouts, information architecture and placement of CTAs to effectively communicate with the intended audience or encourage the user to perform specific actions on each page. This iterative process continues after the deployment of the website or mobile application as analytics and user data are collected to provide the designer and website owner insights into activities, behaviours and interests of the audience. This information is used to make periodic adjustments to the design, layout or organization of elements within the web page or application interface to continually improve user experience or increase conversions.

The Page Fold

25. The term ‘above the fold’ has been around for a long time. The concept of the page fold originates from the early days of publishing newspapers. 6 Newspapers were printed on large sheets of paper and folded in half when displayed on newsstands. Above the fold refers to the content that appeared on the top half of the newspaper’s front page that was still visible after it was folded and stacked on display. This real estate was the most valuable to marketers as people could easily see this content before picking the newspaper up and unfolding it. The same applies in digital marketing and website design today.

6 Optimization Glossary: Above the Fold, Optimizely: https://www.optimizely.com/optimization-glossary/above-the-fold/

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26. This principle has evolved due to the transition from paper to online marketing and web design. Because web pages do not fold the way newspapers do, the fold line refers to the point at the bottom edge of the screen where the web browser cuts off the content and requires users to scroll to view the rest of the page content. Everything after that scroll point is considered ‘below the fold.’

27. No matter what screen size or device type is used, online marketing best practices suggest that anything of primary importance is placed in that first viewable area of the web page before the user has to scroll down to reveal more information. Understanding the user’s screen dimensions and designing the website or application interface for the largest common screen resolution of the total audience captured in the website analytics serves this core marketing principle.

28. The Nielsen Norman Group, world leaders in research-based user experience, have conducted numerous studies on the effect of the page fold dating back to 2010. The research indicates that what appears at the top of the page versus what is hidden below the fold will always influence the user experience – regardless of screen size. When users fail to see information of value, they stop scrolling. In usability testing, the occasional user does a “lay of the land” scroll to get a sense of what’s on a page before engaging, but this behaviour is far from standard. Users scroll when there is a reason to.

29. The fold matters because scrolling is an extra action that users must take to access content. Like waiting for a page to load, clicking through an image slideshow, or opening an expandable design element to reveal more information, scrolling adds an extra step that users must take to accomplish their goal.

30. Empirical data supports the page fold theory. In The Nielsen Norman Group’s study, researchers observed countless users’ behaviours in qualitative usability studies impacted by the fold – often for the worse, because websites didn’t

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prioritize above-the-fold content appropriately. Users stopped scrolling before finding the information they needed and, in some instances, didn’t realize that there was more information available below the fold. 7

31. The research group also uncovered quantitative evidence in an analysis of 57,453 eye-tracking fixations. 8 They found a dramatic drop-off in user attention at the position of the page fold. Elements above the fold were seen more than elements below the fold. The 100 pixels just above the fold were viewed 102% more than the 100 pixels just below the fold. When this evidence is applied to the Cineplex.com “Tickets Page”, the 100 pixels just above the fold feature the floating ribbon with the countdown timer and primary call to action button in the form of a blue button with white text “PROCEED”.

Designing for User Behaviour

32. Understanding how web users in North America consume content on a webpage or application user interface is a fundamental principle of user experience design. It informs layout decisions and placement of important information within the interface. The universally accepted principles behind this methodology dictate that people do not read web pages. Instead, they scan them. Scanning means users only stop to read when something catches their eye. Designers rely on these basic user experience fundamentals to control where the user looks on the web page and to provide direction to the user to clarify the action the website owner wants them to take next.

7 In some instances, studies have shown that placing a CTA above the fold does not result in a noticeable difference in conversion rate compared to a CTA placed below the fold. These instances include situations where a user is seeking detailed information about a specific subject or is researching a product or service before making a decision to purchase. These instances are typically business-to-business transactions and feature an interface design approach that purposefully leads the user’s eye below the fold to encourage them to scroll. These scenarios are not relevant to the consumer experience offered by the Cineplex website and mobile application: “Above the Fold” and Its Role in Modern Web Design, Parachute Design Group Inc. – https://parachutedesign.ca/blog/above-the-fold/ 8 The Fold Manifesto: Why the Page Fold Still Matters, The Nielsen Norman Group: https://www.nngroup.com/articles/page-fold-manifesto/

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33. There are two primary information design configurations for web pages. The first is called the “F Pattern,” which presents information in a long-format or article style with key information placed in locations throughout the page in the general shape of a capital “F”. These pages are designed to accommodate lengthy content and to encourage the user to scan left to right while scrolling down the page as North Americans read regular text.

34. The second design configuration is called the “Z Pattern,” which is used for conversion pages that serve the single purpose of converting users into customers, such as the Tickets Page on the Cineplex.com website and mobile application. Conversion pages are designed to quickly move the user from initial page load to making a selection and advancing to the next step the website owner wants them to take in the sales funnel. The Tickets Page on Cineplex.com is a perfect example of a conversion page designed to provide information about movie times and experiential options available to users and then funnel users into the checkout process. See Figure 1 below for a reference of the Z Pattern concept used on the Tickets Page from Cineplex.com.