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Excerpt from Featured Update
Practical Law Canada Competition

June 20, 2016

This update discusses the Competition Tribunal’s recent Kobo decision, which clarifies the substantive requirements for consent agreements.  This update also discusses the Competition Bureau’s increased bid-rigging enforcement and awareness efforts.

Practical Law Canada Competition

Competition Tribunal Clarifies Test for Consent Agreements

On June 10, 2016, Canada’s Competition Tribunal (Tribunal) issued a decision in Rakuten Kobo Inc. v. Commissioner of Competition, 2016 CarswellNat 2171 (Competition Trib.) (Kobo), which rescinded a previously registered consent agreement on the basis that it did not satisfy the necessary elements for a proper consent agreement before the Tribunal. The decision was without prejudice to the Commissioner of Competition (Commissioner), entering into a new consent agreement that corrects the deficiencies. Nonetheless, the decision provides helpful clarification regarding the substantive requirements for a consent agreement.

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June 2, 2016

Guest post by John Simpson

(Shift Law)

Online threats to commercial reputations are on the rise. These include “attack sites”, “gripe sites” (e.g., RipOff Report), cyber-libel via social media, domain name high-jacking, meta tag high-jacking and defamatory email campaigns. Online brand and reputation attacks are easy and inexpensive to wage and they can be devastatingly effective.

When confronted with an online attack to its brand, a business has a number of options. It can respond with a “corrective campaign”, hire an online reputation management expert, hire a lawyer to write demand letters to the attacker (if known) or to Internet intermediaries or commence a lawsuit – or none of or all of the above.

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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.”

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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).

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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.

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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).

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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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