A case study reads like a story. Legally, it's a representation to the public about performance — and the Competition Act has a specific, verbatim test for exactly that, whether or not anyone drafting it thought of it as advertising.
Key takeaways
Section 52 of the Competition Act prohibits knowingly or recklessly making a representation to the public that is false or misleading in a material respect, and specifies that “the general impression conveyed by a representation as well as its literal meaning” is taken into account. A case study headlined we cut the schedule by six weeks is a representation to the public under that test — publishing it on a website or handing it to a prospect makes it public in the sense the Act cares about, regardless of the format.
Section 74.01(1)(b) goes further for anything phrased as a performance claim, prohibiting a representation “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.” That last clause is the one worth reading twice: the firm publishing the claim carries the burden of proving it, not the reader who doubts it.
The consequence for getting the burden wrong is not hypothetical. Where a court finds reviewable conduct under this part of the Act, it can order an administrative monetary penalty of up to the greater of $10,000,000 for a first order and $15,000,000 for a subsequent one against a corporation — or three times the value of the benefit derived from the deceptive conduct, if that can be determined — with a lower ceiling of $750,000 rising to $1,000,000 for an individual.
Treadstone Law's summary of misleading advertising rules names the failure mode directly: “unsubstantiated performance claims” — saying something performed a certain way “without evidence to back it up” — and frames the core legal test as what impression the representation creates in the mind of an ordinary consumer, taken as a whole.
The practical translation for a case study is straightforward: the headline claim needs the same underlying record the rest of this cluster is built around — an actual baseline date, an actual completion date, and a documented, attributable reason the outcome happened, tied to the site diary and correspondence rather than a marketing department's estimate of how the project probably went.
Testimonials and endorsements carry their own rules: the testimonial has to come from someone who genuinely used the product or service, it can't be edited in a way that changes its meaning, and if there's a paid or otherwise material connection between the firm and the person quoted, that connection generally needs to be disclosed clearly enough that a reasonable person would understand it. Selectively showing only flattering feedback, in a way that distorts the overall picture, runs into the same general-impression problem as an unsubstantiated performance number.
In practice this means asking the client directly whether a quote can be attributed to them by name, keeping their wording intact rather than rewriting it into marketing copy, and checking back in if the project's circumstances change in a way that would make the original quote misleading later — a glowing quote given mid-project can read very differently if the relationship soured before completion.
CASL's business-to-business exemption is narrow by design: it only excuses a commercial electronic message from consent requirements where the sender and recipient both act for organizations that already have an existing relationship, and the message concerns the recipient's role or duties within that organization. A case study emailed to a warm client contact inside that relationship may qualify. The same case study blasted to a cold prospect list — even a business-to-business one — generally does not, and needs its own consent basis before it goes out.
A properly sourced case study isn't just a website post — it's also the raw material for the project-experience section of an RFP response, where the same performance claim carries the same legal exposure whether it's read by a website visitor or a procurement evaluator scoring a submission. Building the substantiation once, at the source, means it holds up wherever the case study ends up being reused.
A worked example
A firm wants to publish the headline we cut the client's schedule by six weeks for a new case study.
To survive an adequate-and-proper-test challenge under s.74.01(1)(b), that claim needs an actual baseline (the schedule date before the firm's intervention), an actual completion date, and a documented reason the six weeks is attributable to the firm's own work rather than, say, the owner's own scope changes or a permitting delay that had nothing to do with the contractor. That record is exactly what a maintained site diary and correspondence trail exists to provide.
An unsubstantiated version of the same headline — no baseline, no dated record, just a round number that sounds impressive — is precisely the “unsubstantiated performance claim” the Act's onus provision is written to catch, and the burden of proving it sits with the firm that published it, not with anyone who happens to question it later.
Not without evidence behind it. Section 74.01(1)(b) requires a performance representation to rest on an adequate and proper test, and puts the burden of proving that on the firm making the claim — a broad, unsubstantiated claim like that is exactly the kind of statement the provision targets.
In substance, yes. Testimonial rules require that the material reflect the client's genuine experience and isn't edited in a way that changes its meaning — using a client's name and project details without their knowledge risks both a misrepresentation problem and a straightforward relationship problem.
Generally no, without a proper consent basis. The business-to-business exemption only covers messages between organizations with an existing relationship, about the recipient's own role or duties — a cold outreach case study to a new prospect doesn't qualify.
The project's own contemporaneous record — diary entries, dated correspondence, and the project-experience data already maintained for RFP responses — rather than a retrospective estimate assembled specifically to support the marketing claim.
Yes, but it doesn't remove the exposure — a representation made to a single prospective client is still a representation, and the same substantiation and testimonial rules apply. Limited distribution reduces how many people could dispute it, not whether the underlying claim needs to be true and provable.
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