THE COMPETITION ACT
Canadian competition law is largely governed by the Competition Act (Act). The Act is federal framework legislation that applies to most businesses and industries in Canada, with limited exceptions and includes criminal offences and civil reviewable matters. The Act is administered and enforced by the federal Competition Bureau (Bureau), a federal enforcement agency headed by the Commissioner of Competition (Commissioner).
The Act sets out four purposes: to promote the efficiency and adaptability of the Canadian economy; to expand opportunities for Canadian participation in world markets; to ensure that small and medium-sized enterprises have an equitable opportunity to participate in the Canadian economy; and provide consumers with competitive prices and product choices.
In general, the Act is consumer protection legislation intended to ensure that consumers benefit from competitive and undistorted markets.
CRIMINAL OFFENCES & CIVIL MATTERS
The Act includes both criminal offences and civil reviewable matters.
The criminal offences of the Act include conspiracy (price-fixing, market division or output restriction agreements among competitors) (section 45); bid-rigging (section 47); criminal misleading advertising (section 52); deceptive telemarketing (section 52.1); and pyramid selling schemes (section 55.1).
Some former competition offences (e.g., predatory pricing and price discrimination) were repealed in 2009. The conduct they related to, however, may still be subject to challenge under the civil provisions of the Act. Canada’s former criminal price maintenance offence (section 61) was also repealed in 2009 and made into a civil reviewable matter (section 76).
Criminal offences under the Act are investigated by the Bureau, prosecuted by the Public Prosecution Service of Canada (PPSC), tried in provincial criminal courts and subject to criminal penalties. The potential penalties include criminal fines, imprisonment and prohibition orders (court orders to stop or modify conduct, implement a compliance program, etc.).
The Bureau also has access to a broad range of significant and intrusive enforcement powers in relation to criminal matters. These include the ability to obtain search warrants to search premises, wiretaps and court orders to compel the production of documents. The Bureau also routinely relies on its Immunity and Leniency Programs to detect criminal violations of the Act.
The Act also contains a number of civil reviewable matters. These include price maintenance (section 76); civil misleading advertising (section 74.01); refusal to deal (section 75); abuse of dominance (sections 78 and 79); tied selling / exclusive dealing / market restriction (section 77); and mergers (section 92).
These civil sections, generally speaking, can apply to conduct such as refusals to deal/supply, abuses of dominance by significant firms (e.g., predatory pricing, exclusive supply arrangements and other exclusionary or disciplinary conduct) and where suppliers maintain resale prices that have adverse effects on competition.
These sections also address conduct that may be pro- or anti-competitive but require a closer examination of the potential market effects – for example, whether conduct is likely to result in an adverse effect on competition or substantially prevent or lessen competition. In general, the civil reviewable matters provisions of the Act parallel the rule of reason antitrust law standard of review in the United States.
Like the criminal offences under the Act, reviewable matters are also investigated by the Bureau, may result in proceedings initiated by the Bureau or private parties in certain cases with leave from the Competition Tribunal, are generally heard before the Competition Tribunal (and in some cases in provincial or Federal Court) and are subject to a variety of potential remedial orders or monetary penalties.
The potential penalties for violating the reviewable matters provisions of the Act include court or Competition Tribunal orders to stop conduct, administrative monetary penalties (AMPs) of up to $10 million and orders to compensate consumers.
The Act is enforced and administered by the Bureau, a federal enforcement agency headed by the Commissioner. The Bureau investigates potential competition law offences and civil reviewable matters under the Act.
The Commissioner and the Bureau have significant powers to investigate potential violations of the Act. These include the ability to search premises and seize documents; search and seize computer records; obtain wiretaps; compel individuals to testify under oath; and require companies or individuals to produce documents or respond to written information requests.
The Commissioner has the power to investigate and refer criminal matters to the PPSC for prosecution.
As discussed above, criminal offences under the Act include conspiracy (i.e., price-fixing, market allocation/division or supply/output restriction agreements between competitors); bid-rigging; misleading advertising in some cases; deceptive telemarketing and pyramid selling schemes.
While the Bureau investigates potential violations of the Act’s criminal offences, the responsibility for prosecutions lies with the DPP. In practice, the Bureau and the PPSC work closely together.
The Commissioner is also responsible for investigating and initiating applications relating to potential contraventions of the Act’s civil reviewable matters. The Act’s civil reviewable matters include the civil misleading advertising, refusal to deal, price maintenance, abuse of dominance and exclusive dealing / tied selling / market restriction sections.
For more information about Bureau enforcement, see Bureau Enforcement.
COMPETITION LAW MATTERS
Competition law proceedings in Canada may be commenced under the Act by the Bureau itself based on its own investigation, as a result of complaints from customers, competitors or other industry participants or from persons that have (or may have) contravened the Act and are seeking immunity or leniency under the Bureau’s Immunity and Leniency Programs.
The Act also contains specific whistleblower provisions with protections for whistleblowers (i.e., employees or other personal that may detect activities that violate the Act).
In addition to Bureau investigations, private parties may also in some cases commence private actions (under section 36 of the Act) for violations of the criminal sections of the Act, including the criminal conspiracy and criminal misleading advertising sections.
Private parties may also make private access applications to the Competition Tribunal, with leave, for Tribunal orders under the refusal to deal, price maintenance or exclusive dealing / tied selling / market restriction sections.
Finally, any person may file a complaint for a potential violation of the Act with the Competition Bureau.
Violation of the Act can result in severe penalties, lost time and negative publicity individuals, companies, associations and other types of organizations, as well as their executives and personnel.
The potential penalties under the Act include criminal fines (e.g., fines in the discretion of the court for bid-rigging under section 47 or up to $25 million per count for violation of the conspiracy offences under section 45), AMPs (essentially civil fines), imprisonment, damages (or settlements) arising from private civil actions and court orders (injunctions or prohibition orders) to stop or modify conduct.
There is also potential director and officer liability under the Act. In this regard, the Bureau commonly pursues individual executives as accused in criminal matters and plaintiffs routinely name directors and officers as defendants in civil actions.
Over the past several years, the Bureau has also expressed a desire to more seriously pursue individual liability for violations of the Act. The former ability of courts to award conditional sentences (i.e., time served in the community) has been eliminated for the more serious offences under the Act, including price-fixing and bid-rigging.
COMPETITION LAW COMPLIANCE
On June 3, 2015, the Bureau finalized its new core competition law compliance materials, which include new incentives for compliance (e.g., a credible and effective compliance program may be considered in assessing penalties under the Bureau’s Leniency Program).
They are essential reading for corporate compliance officers, lawyers advising companies and associations about their compliance obligations, senior management and in-house counsel.
The Bureau’s new compliance materials now consist of an updated Corporate Compliance Programs Bulletin, Compliance Programs Pamphlet, several competition compliance fact sheets and a series of compliance videos.
Also as part of the Bureau’s new competition compliance approach, it has updated its template Corporate Compliance Program Framework (i.e., template compliance program) and Certification Letter and expanded its due diligence checklist, all which form part of its new Corporate Compliance Programs Bulletin.
Underscoring all of the Bureau’s new compliance materials is one message: companies, associations and other organizations need to adopt a credible and effective competition compliance program.
For more information see: Competition Compliance.
SERVICES AND CONTACT
I offer business and individual clients efficient and strategic advice in relation to competition/antitrust, advertising, Internet and new media law and contest law. I also offer competition and regulatory law compliance, education and policy services to companies, trade and professional associations and government agencies.
My experience includes counseling clients on the application of Canadian competition and regulatory laws and I have worked on hundreds of domestic and cross-border competition, advertising and marketing, promotional contest (sweepstakes), conspiracy (cartel), abuse of dominance, compliance, refusal to deal, pricing and distribution, Investment Canada Act and merger matters. For more information about my competition law services see: competition law services.
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