CANADIAN COMPETITION LAW
Legislation
Competition law in Canada is governed by the federal Competition Act (the “Act”). The Act is federal law of general application that contains criminal and civil sections and applies to most business activities in Canada, with few exceptions. The Act is administered and enforced by the federal Competition Bureau (the “Bureau”), which is a federal enforcement agency headed by the Commissioner of Competition (the “Commissioner”). While competition law was introduced in Canada in 1889 (one year before the introduction of the Sherman Act in the United States), Canadian competition law has for the most part only been actively enforced in Canada since 1986 when Canada’s new Act was introduced and when a number of changes were made to Canadian competition law to mark Canada’s modern era of competition law.
Purposes
The Act sets out four objectives of Canadian competition law as follows: (i) to promote the efficiency and adaptability of the Canadian economy, (ii) to expand opportunities for Canadian participation in world markets, (iii) ensuring that small and medium-sized enterprises have an equitable opportunity to participate in the Canadian economy and (iv) to provide consumers with competitive prices and product choices. As a practical matter, at least from the perspective of competition law enforcement agencies, the main over-riding purpose of competition law is to ensure that consumers benefit from competitive and undistorted markets.
Criminal and Civil Sections
The Act contains a number of criminal sections. These include the criminal conspiracy (section 45), bid rigging (section 47), criminal misleading advertising (section 52) and deceptive telemarketing (section 52.1) sections. The Act also contains a number of civil (non-criminal) sections. These include the price maintenance (section 76), civil misleading advertising (section 74.01), predatory pricing (section 79 – abuse of dominance), refusal to deal (section 75), abuse of dominance (section 79) and tied selling, exclusive dealing and market restriction sections (all contained in section 77).
Enforcement
The Act is administered by the Bureau, which is a federal enforcement agency headed by the Commissioner, who investigates complaints by consumers and businesses. Under the Act, the Commissioner’s enforcement powers include the power to make voluntary information requests, obtain compulsory production orders and search warrants and orders to interview employees under oath. In addition, the Commissioner has the power to make applications to the federal Competition Tribunal (the “Tribunal”) for orders, including orders to stop conduct and/or pay civil penalties and refer criminal matters to the Director of Public Prosecutions (“DPP”) for criminal prosecution. Proceedings may be commenced under the Act by the Bureau or based on complaints from customers, competitors or industry participants.
In addition to Bureau investigations, private parties may also in some cases commence private civil actions against persons contravening the criminal sections of the Act (including the criminal conspiracy and criminal misleading advertising sections) or seek “private access” to the Tribunal for Tribunal remedial orders (e.g., for a party to cease a particular type of conduct).
Penalties
Contravention of the Act can be a serious matter and lead to significant penalties, lost time and negative publicity for individuals, companies, other types of organizations and their executives and personnel. The potential penalties under the Act include criminal fines, civil “administrative monetary penalties” (essentially civil fines), imprisonment, damages as a result of private civil actions and prohibition orders or injunctions to stop conduct.
For example, some of the specific potential penalties under the Act include criminal fines of up to CDN $25 million (for criminal conspiracy as of March 12, 2010), civil fines of up to CDN $10 million (for abuse of dominance) and imprisonment for up to 14 years (for criminal conspiracy as of March 12, 2010). Private parties (e.g., consumers or competitors) can also commence private actions for damages where they have suffered actual damage or loss as a result of a violation of the criminal provisions of the Act (e.g., criminal conspiracy). In addition, there is also potential director and officer liability under the Act for competition law violations. In other words, directors and officers of companies may, in addition to a company itself, also be exposed to criminal or civil penalties including fines or imprisonment.
As a practical matter, the Bureau is more likely to proceed criminally (as opposed to civilly) where there has been intentional or fraudulent anti-competitive conduct, as opposed to where, for example, conduct has been engaged in accidentally or negligently and where an organization takes immediate remedial steps to correct the conduct. With respect to the size of penalties, while the potential fines and other penalties can be very significant, in most cases the maximum penalties are not imposed. Having said that, the fines or other penalties that may be imposed for conduct that contravenes the Act can nevertheless have serious negative consequences for companies and individuals. For example, in one recent case involving a Manitoba real estate investment company, the company paid more than $150,000 in penalties as a result of operating an allegedly misleading promotional contest to promote real estate investment opportunities.
OUR SERVICES
We practice federal competition law, have advised clients across Canada and provide a full range of competition law and foreign investment law services including in relation to the criminal conspiracy, merger, abuse of dominance, misleading advertising and deceptive marketing provisions of the federal Competition Act.
Our competition and foreign investment law services include advice in relation to:
MERGER CONTROL
- Application of the Competition Act to mergers including the recent Competition Act amendments.
- Application of the Investment Canada Act to foreign investment in Canada.
- Pre-merger notification and Investment Canada Act filings.
- Competition law submissions to the Competition Bureau.
- Competition law provisions in transaction documents.
- Pre-merger conduct memoranda (i.e., pre-mature completion and avoiding conspiracy law risk).
- Coordination of multi-jurisdictional mergers.
CRIMINAL CONSPIRACY
- Application of the new criminal conspiracy rules to commercial activities.
- Application of the new civil rules for anti-competitive agreements.
- Structuring commercial agreements, joint ventures and strategic alliances to comply with the Competition Act.
- Competition law compliance programs for companies and trade associations.
- The conduct of meetings and information exchanges.
- Application of the Competition Bureau’s immunity and leniency programs.
- Binding Competition Act advisory opinions.
TRADE ASSOCIATIONS
- Trade association competition law compliance programs.
- Competition law seminars for trade association executives and personnel.
- Audits and reviews of trade association activities.
- Trade association communications, meetings and conventions.
- Trade association rules, bylaws, policies, codes of conduct and fee tariffs.
- Criminal search & seizure guidelines.
- The application of the criminal and civil sections of the Competition Act.
COMPETITION LAW COMPLIANCE PROGRAMS
- Competition law compliance programs.
- Competition law seminars for companies and trade associations.
- Corporate and trade association activities for competition law compliance.
- Competition law talks and “lunch and learns”.
- Board meetings, conferences and other meetings.
ADVERTISING & MARKETING LAW
- The “general” misleading advertising provisions of the Competition Act.
- Internet, online & new media advertising and marketing.
- Sales and promotions.
- Promotional contests.
- Multi-level marketing plans and pyramid selling schemes.
- The deceptive marketing provisions of the Competition Act.
- Consumer packaging and labelling legislation.
PROMOTIONAL CONTESTS
- Application of the Competition Act and Criminal Code to promotional contests.
- Short and long contest rules and required statutory disclosure.
- Promotional contest marketing and advertising materials.
- Application of the misleading advertising provisions of the Competition Act.
CANADIAN COMPETITION LAW LINKS & RESOURCES
LEGISLATION
Competition Act, R.S.C. 1985, c. C-34.
Competition Tribunal Act, R.S.C. 1985, c. 19 (2nd Supp.).
Competition Tribunal Rules, S.O.R./94-290.
Notifiable Transactions Regulations
Worldlii (legislation and Canadian competition law links)
COMPETITION BUREAU
Fee and Service Standards Handbook
COMPETITION LAW TOPICS
Advertising and Marketing Law
Pritchard, Brenda and Susan Vogt, Advertising and Marketing Law in Canada(Toronto: LexisNexis, 2009).
Young, David M.W. and Brian R. Fraser, Canadian Advertising and Marketing Law, looseleaf (Toronto: Carswell, 1990 – ).
Abuse of Dominance
Abuse of Dominance (Links & Publications)
Abuse of Dominance (Enforcement Guidelines)
Abuse of Market Power (Pamphlet)
Bid Rigging
Comparative Competition Law
Facey, Brian and Dany H. Assaf, Competition and Antitrust Law: Canada and the United States, 3rded. (Markham: LexisNexis Butterworths, 2006).
Roberts, R.J., The Competition Law of Canada and the United States (Toronto: Butterworths, 1992).
Competition Bureau
Fee and Service Standards Handbook
Competition Law and Intellectual Property
Competition Bureau, Intellectual Property Enforcement Guidelines.
Competition Policy
Gorecki, Paul K., The Objectives of Canadian Competition Policy (Montreal: Institute for Research on Public Policy, 1984).
Compliance Policies
Corporate Compliance Programs (Bulletin)
Competition Tribunal
Compliance Policies
Corporate Compliance Programs (Bulletin)
Confidential Information
Competition Bureau, Information Bulletin, Communication of Confidential Information Under the Competition Act (1995)
Conspiracy
Cartels (Links & Publications)
Competitor Collaboration Guidelines (Enforcement Guidelines)
Competition Bureau, Reaching an Agreement with Competitors (Pamphlet)
Sentencing and Leniency in Cartel Cases (Information Bulletin)
Setting Your Own Price (Pamphlet)
General
Wikipedia – Canadian Competition Law
Canadian Competition Policy Review Panel
Canadian Law – Canadian Competition / Antitrust Law
Historical
Bureau of Competition Policy, Canadian Competition Law and Policy: A Centennial Bibliography, 1889-1989 (Ottawa: Consumer and Corporate Affairs, 1990).
Khemani, R.S. and W.T. Stanbury, eds., Historical Perspectives on Canadian Competition Policy (Halifax: The Institute for Research on Public Policy, 1991).
Khemani, R.S. and W.T. Stanbury, eds., Canadian Competition Law and Policy at the Centenary (Halifax: The Institute for Research on Public Policy, 1991).
Law and Economics
Trebilcock, Michael, Ralph A. Winter, Paul Collins and Edward M. Iacobucci, The Law and Economics of Canadian Competition Policy (Toronto: University of Toronto Press, 2002).
Merger Control
Efficiencies in Merger Review (Bulletin)
Fees and Service Standards Handbook
Mergers (Links & Publications)
Merger Remedies in Canada (Bulletin)
Notifiable Transactions (Interpretation Guidelines)
Notifiable Transactions (Procedures Guide)
Campbell, Andrew Neil, Merger Law and Practice: The Regulation of Mergers Under the Competition Act(Carswell Legal Publications, 1997).
Crampton, Paul S., Mergers and the Competition Act(Toronto: Carswell, 1990).
Misleading Advertising
Application of the Competition Act to Representations on the Internet (Enforcement Guidelines)
Competition Bureau, Bait and Switch Selling (Pamphlet)
Competition Bureau, Deceptive Prize Notices (Pamphlet)
Misleading Representations (Links & Publications)
Misleading Representations (Pamphlet)
Misleading Representations: Criminal or Civil Track (Guidelines)
The Ordinary Selling Provisions of the Competition Act (Bulletin)
Competition Bureau, Promotional Contests – Section 74.06 of the Competition Act
Competition Bureau, Telemarketing: Section 52.1 of the Competition Act
Competition Bureau, What You Should Know About Telemarketing (Pamphlet)
Multi-level Marketing and Pyramid Selling
Competition Bureau, Section 55 and 55.1 of the Competition Act – Multi-level Marketing and Pyramid Selling.
Competition Bureau, Multi-level Marketing and Pyramid Selling (Pamphlet).
Packaging and Labelling
Consumer Packaging and Labelling Act
Guide to the Consumer Packaging and Labelling Act
Guide to the Textile Labelling and Advertising Regulations
Private Access
Competition Bureau, Information Bulletin on Private Access to the Competition Tribunal (2005).
Promotional Contests
Promotional Contests (Enforcement Guidelines)
Restraint of Trade
Trebilcock, Michael J., The Common Law of Restraint of Trade: A Legal and Economic Analysis(Toronto: The Carswell Company, 1986).
Refusal to Deal
Competition Bureau, Refusal to Supply (Pamphlet).
Regulated Conduct
Competition Bureau, Technical Bulletin on “Regulated Conduct” (2006).
Trade Associations
For competition law and associations links and resources see:
Competition Law and Associations – Links and Resources
Treaties
Treaty Between the Government of Canada and the Government of the United States of America on Mutual Legal Assistance.
Agreement Between the Government of Canada and the Government of the United States of America Regarding the Application of Their Competition and Deceptive Marketing Practices Laws.
Agreement Between the Government of Canada and the European Communities Regarding the Application of Their Competition Laws.
Cooperation Agreement Between the Commissioner of Competition (Canada), the Australian Competition and Consumer Commission and the New Zealand Commerce Commission Regarding the Application of their Competition and Consumer Law.
Memorandum of Understanding Between the Commissioner of Competition (Canada) and the Fiscal Nacional Economico (Chile) Regarding the Application of their Competition Laws.
Chapter J (Competition Policy, Monopolies and State Enterprises), Canada-Chile Free Trade Agreement.
Chapter Seven (Competition Policy), Free Trade Agreement Between the Government of Canada and teh Government of the State of Israel.
Chapter XI (Competition Policy), Canada-Costa Rica Free Trade Agreement.
Canada-UK Cooperation Agreement.
BOOKS AND REPORTS
Affleck, Donald S. and K. Wayne McCracken, Canadian Competition Law, looseleaf (Toronto: Carswell, 1989 – ).
Addy, George N. and William L. Vanveen, Competition Law Service, looseleaf (Aurora: Canada Law Book Inc., 1988 – ).
Affleck, Donald S. and K. Wayne McCracken, Canadian Competition Law, looseleaf (Toronto: Carswell, 1989 – ).
Bureau of Competition Policy, Canadian Competition Law and Policy: A Centennial Bibliography, 1889-1989 (Ottawa: Consumer and Corporate Affairs, 1990).
Canadian Bar Association, Competition Law for the 21st Century: Papers of the Canadian Bar Association Competition Law Section 1997 Annual Conference(New York: Juris Publishing, 1998).
Canadian Bar Association, Papers of the Canadian Bar Association Annual Fall Conference 1998(New York: Juris Publishing, 1999).
Canadian Bar Association, Papers of the Canadian Bar Association Annual Fall Conference 1999(New York: Juris Publishing, 1999).
Collins, Paul and Carolyn Naiman, Competition Policy (Toronto: Faculty of Law, University of Toronto 2007).
Collins, Paul and Carolyn Naiman, The Practice of Competition Law: Effective Management of Competition Law Risk (Toronto: Faculty of Law, University of Toronto, 2007).
Competition Policy Review Panel, Final Report, Compete to Win (June, 2008), available at http://www.ic.gc.ca/eic/site/cprp-gepmc.nsf/eng/h_00040.html.
Dunlop, Bruce, David McQueen and Michael Tribilcock, Canadian Competition Policy (Toronto: Canada Law Book, 1987).
Facey, Brian and Dany H. Assaf, Competition and Antitrust Law: Canada and the United States, 3rded. (Markham: LexisNexis Butterworths, 2006).
Flavell, C.J. Michael, Canadian Competition Law: A Business Guide(Toronto: McGraw-Hill Ryerson, 1989).
Flavell, C.J. Michael, The Canadian Competition Law Handbook(Scarborough, Carswell, 1997).
Goldman, Calvin S. and John D. Bodrug, eds., Competition Law of Canada, looseleaf (New York: Juris, 1988 – ).
Gorecki, Paul K. and W.T. Stanbury, The Objectives of Canadian Competition Policy, 1888-1983 (Montreal: Institute for Research on Public Policy, 1984).
Iacobucci, Edward, Competition Policy (Toronto: University of Toronto, 2010).
Khemani, R.S. and W.T. Stanbury, eds., Historical Perspectives on Canadian Competition Policy (Halifax: The Institute for Research on Public Policy, 1991).
Khemani, R.S. and W.T. Stanbury, eds., Canadian Competition Law and Policy at the Centenary (Halifax: The Institute for Research on Public Policy, 1991).
Musgrove, James, ed., Fundamentals of Canadian Competition Law(Toronto: Thomson Carswell, 2007).
Pitel, Stephen G.A., Litigating Conspiracy: An Analysis of Competition Class Actions (Toronto: Irwin Law, 2006).
Pritchard, Brenda and Susan Vogt, Advertising and Marketing Law in Canada(Toronto: LexisNexis, 2009).
Roberts, R.J., The Competition Law of Canada and the United States (Toronto: Butterworths, 1992).
Stanbury, W.T., Notes on Conspiracy Cases Under Canadian Competition Legislation (Vancouver: Faculty of Commerce, University of British Columbia, 1980).
Stikeman Elliott, Competition Act and Commentary (Markham: Butterworths Canada, 2010).
Szentesi, Steve, Competition Law and REALTORS, What You Say and Do Matters (Alliance for Canadian Real Estate Education, 2010).
Trebilcock, Michael, Ralph A. Winter, Paul Collins and Edward M. Iacobucci, The Law and Economics of Canadian Competition Policy (Toronto: University of Toronto Press, 2002).
Wakil, Omar, ed., The 2010 Annotated Competition Act(Toronto: Thomson Carswell, 2009).
Young, David M.W. and Brian R. Fraser, Canadian Advertising and Marketing Law, looseleaf (Toronto: Carswell, 1990 – ).
COMPETITION LAW BLOGS AND LAW PAGES
Antitrust and Competition Policy BlogA blog by D Daniel Sokol. Includes links to new research, speeches, laws, conferences etc.
Antitrust Law BlogA blog by Sheppard Mullin.
Antitrust ReviewA US-based blog updated and edited by Hanno Kaiser, David Fischer and Manfred Gabriel.
Antitrust Commentary A US blog run by Matthew S. Wild, Senior Counsel at Levitt & Kaizer.
Antitrust Lawyer BlogA blog by antitrust Lawyers Doyle, Barlow & Mazard PLLC.
The Antitrust Hotch PotchA blog by by Prof Damien Geradin.
Canadian Bar Association – National Competition Law Section
Canadian Competition Policy Review Panel
Canadian Law – Canadian Competition / Antitrust Law
Canadian Competition Policy Page (Tom Ross – UBC)
Chillin’ CompetitionA blog by Dr Nicolas Petit, lecturer in competition law and economics at the Institute for European Legal Studies (IEJE) Liege Law Faculty and co-director of the IEJE.
Competition Law: Australian Competition Law (Australia)
Competition Law: A View From Hungary (Hungary)
International Competition Network (ICN)
University of Toronto Faculty of Law – Canadian Competition Law Page
CANADIAN COMPETITION LAW LINKS
For more information about Canadian competition law or our competition law services visit our Blog Homepage, Competition Law Services, Canadian Competition Law, Competition Act Amendments, Merger Control, Merger Control FAQs, Abuse of Dominance, Conspiracy, Advertising and Marketing, Promotional Contests, Trade Associations, Refusal to Deal, Investment Canada Act, Canadian Competition Law Compliance, Private Actions, Bid Rigging, Canadian Competition Law Resources, Competition Law Links or Global Competition Law and Policy pages or visit our website at www.NortonStewart.com.
CONTACT US
We provide Canadian competition law services to clients across Canada and internationally. For more information about our Canadian competition law and consulting services contact us at steve@nortonstewart.com, info@competitionlawcanada.com or call us at +1 604 687 0555 or +1 778 867 5558.