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May 27, 2016

Earlier today, the Competition Bureau (Bureau) announced two final settlements in its four-year year litigation against Canada’s major telecoms and the Canadian Wireless Telecommunications Association (CWTA). See: Bell customers to receive up to $11.82 million as part of Competition Bureau agreement.

In making the announcement, the Commissioner of Competition said:

“We are pleased that the agreements reached with Bell and the CWTA bring an end to the legal proceedings initiated by the Competition Bureau. Trust in the digital economy is vital for Canadians in the 21st century. As with the settlements reached with Rogers and Telus, Bell’s settlement represents a significant win for consumers and will deter others from engaging in misleading advertising that results in unauthorized charges to consumers.”

This case, which was first commenced by the Bureau in 2012, involved allegations that Canada’s three largest telecoms (Rogers, Telus and Bell) made or permitted materially false or misleading representations that consumers could receive premium text messaging and other services for free, when they were in fact charged for content, and that claims were made that consumers were safeguarded from receiving and having to pay unauthorized charges, when the telecoms collected and facilitated such charges keeping a percentage. The Bureau’s allegations against the CWTA were similar. Its position was that the trade association made or permitted to be made materially false or misleading premium text message claims.

Perhaps the most interesting aspect of this case was the fact that the provision of premium text services and their billing involved unrelated content providers and aggregators, raising the key issue of liability for the telecoms based on the activities of third parties. Also interesting is that the Bureau also pursued an industry association in this case, which reflects a continuing scrutiny of professional and trade associations (the most noteworthy recently decided case being its abuse of dominance proceedings against the Toronto Real Estate Board – see here).

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May 26, 2016

Steve Szentesi & Mark Warner

Earlier today, the Globe and Mail reported that the Canadian Competition Bureau (Bureau) has launched a widespread criminal investigation into the condominium renovation industry in Ontario. See: here.

According to the Globe, the focus of the Bureau’s investigation appears to be potential criminal conspiracy and bid-rigging in the provision of renovation services to condominiums from 2006-2014 with more than 100 condominium boards being compelled to produce records (which appear to be by way of section 11 orders under the Competition Act).

While the Competition Bureau conducts criminal investigations in private, the Globe’s reporting indicates that this investigation follows earlier compulsory production orders served on renovation companies, that the focus of the probe is the renovation firms (and possibly condo management firms) and not condominium owners and is in relatively early stages.

A Bureau spokesperson was interviewed in connection with the investigation. However, is not clear whether the Bureau may proceed or against whom – for example, whether the Bureau may seek prosecution against any of the renovation companies targeted in the investigation, condominium management firms or others, grant immunity or leniency to any of those involved or enter into settlements with targets.  No violations of the Competition Act have yet been established.

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May 24, 2016

Promotional contests in Canada are largely governed by the federal Competition Act, Criminal Code and contract law. Other laws can also apply depending on the type of contest, including privacy, anti-spam and intellectual property law. One of the areas of law that has affected contests the most over the past several years is CASL – Canada’s anti-spam legislation. For more information, see my CASL overview: here.

In general, CASL requires express or implied consent to send “commercial electronic messages”. CASL also imposes specific form (i.e., disclosure) and opt-out (i.e., unsubscribe) requirements. CASL has significantly impacted the way companies, individuals and other types of organizations engage in electronic marketing in Canada.

For promotional contests, CASL can be relevant in a number of ways, including where an existing marketing list is used to market a promotion, e-mail addresses are collected for later electronic marketing, where electronic communication is used to administer the contest and for specific types of promotions – for example, contests run in connection with online surveys. Of course, every contest/sweepstakes and promotion is different. which means that the CASL requirements will vary.

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Excerpt from Featured Update
Practical Law Canada Competition

May 13, 2016

On May 10, 2016, the Competition Tribunal (Tribunal) released its full reasons in the landmark Toronto Real Estate Board (TREB) abuse of dominance case (The Commissioner of Competition v. The Toronto Real Estate Board, 2016 Comp. Trib. 7 (Competition Trib.)).

This decision is the culmination of five years of litigation, including a Federal Court of Appeal decision that redefined and expanded the law of abuse of dominance in Canada. For more information about abuse of dominance, see Practice Note, Abuse of Dominance (Sections 78 and 79 of the Competition Act).

In general, this case involved restrictions imposed by TREB on its members’ use of some of its key Multiple Listing Service (MLS) data, such as property sold information, for innovative online products and services, such as “virtual office websites” (VOWs) (VOW Restrictions). VOWs are password-protected areas of real estate brokerages’ websites where consumers can access and search for MLS information normally only available to TREB members or their potential clients by more traditional means (for example, in person, by e-mail or fax).

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May 7, 2016

Guest post by Richard Elliott
Member of the Ontario and New York bars

Canada’s Commissioner of Competition (Commissioner) and Parkland Fuel Corporation (Parkland) recently settled their outstanding merger proceedings before the Competition Tribunal (Tribunal) in respect of Parkland’s acquisition of Pioneer Energy (the “Parkland” case).[1] Since the case did not proceed to a final decision on the merits, this note considers an unresolved issue emanating from the interim injunction decision in Parkland: Does the wealth transfer from consumers to producers in an anticompetitive merger constitute harm in merger review under Canada’s Competition Act?

This issue is assessed particularly in light of the seemingly divergent approach to the wealth transfer in the interim injunction decision in Parkland as compared to the most recent fully contested merger decision in Tervita Corp v. Canada (Commissioner of Competition)(the “Tervita” case).[2] The wealth transfer was viewed as harmful in Parkland, but not in Tervita. This divergence may reflect that Parkland was an interim decision, whereas Tervita was a full determination on the merits, including consideration of efficiencies. Nonetheless, it is unclear why a distinction between an interim and final decision would justify potentially viewing the same wealth transfer as both harmful for purposes the interim injunction application and not harmful in a full determination on the merits.

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April 27, 2016

I frequently receive inquires and calls relating to filing a competition, advertising, consumer protection or other regulatory complaint.

Companies, individuals or other types of organizations may want to file a complaint relating to a competitor, manufacturer or supplier, retailer or other market participant based on potentially anti-competitive or misleading/deceptive conduct in the marketplace.

A complaint may be based on direct harm in the marketplace (for example, competitor conduct that is causing damages) or simply from a concern that a company’s or individual’s activities are violating federal, provincial or local laws.

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