May 21, 2014
Several days ago the Competition Bureau posted new remarks by the Commissioner of Competition from the Canadian Bar Association’s 2014 Competition Law Spring Forum (one of two annual Canadian competition law conferences hosted by the CBA). See: Remarks by John Pecman, Commissioner of Competition. These new remarks are a bit of a “one stop shop” for Canadian competition law developments over the past year or two. A few highlights of the Commissioner’s remarks that caught my eye included:
Compliance: A continued emphasis on competition law compliance, including references to some of the Bureau’s recently issued new competition compliance resources and compliance video: Promoting Corporate Compliance. The Commissioner also referred again to its work updating and re-branding its corporate compliance efforts. More is expected to be announced on this in the coming months.
Advertising law matters. The Commissioner discussed several recent Canadian advertising cases including Rogers/Chatr (performance claims); the first breach of a consent order case in Canada (involving an online job opportunities scam, in which the convicted operator was sentenced to 30 months imprisonment); one recent deceptive telemarketing case (in which the operator was sentenced to 9 months imprisonment); Hyundai and Kia cases (allegedly misleading fuel consumption ratings); and ongoing Leon’s/Brick “buy now, pay later” case (involving allegedly hidden processing fees). The Commissioner also summarized the Bureau’s recent anti-scam efforts (describing its ebook version of its Little Black Book of Scams) and work in the e-commerce and online advertising areas.
Bureau restructuring: An announcement that the Bureau will be combining its existing eight branches into four branches as a response to increased federal government “austerity” (budget) measures.
Enforcement: The Commissioner re-iterated the Bureau’s continued focus on enforcement.
Merger review statistics: A few key merger review statistics: 219 merger reviews in the past fiscal year, 46 of which were “complex” mergers; 14 merger position statements; and several newly issued Pre-Merger Notification Interpretation Guidelines.
Recent high profile transactions: A discussion of some recent high profile transactions, including the Sobeys/Safeway and Loblaw/Shoppers transactions. The new remarks also include discussions of the different types of remedies sought by the Bureau including behavioural remedies in the Loblaw/Shoppers merger and some views on its approach to cross-border remedies.
Criminal matters: More than $54 million in criminal fines imposed for cartel conduct under the Competition Act (i.e., under the bid-rigging and conspiracy provisions of the Act). Some of the more noteworthy cases include auto parts, bearings, chocolate, air cargo and ocean freight. The Commissioner’s summary also includes some of the efforts by the Bureau to seek penalties against individuals (for example, in ocean freight, chocolate and the recently announced Archives Canada bid-rigging investigation).
(Relatively recent) corporate criminal liability development: A discussion of the recent Pétroles Global gas price-fixing conviction, in which a (mere) territorial manager was found to be a “senior officer” under section 22.2 of the Criminal Code to result in corporate criminal liability. This case has received fairly considerable commentary in Canada, given that it is seen as “lowering the bar” for corporate criminal convictions for actions of more inferior management than in the past (and therefore, potentially more criminal competition law risk for corporations).
TREB (real estate board) abuse of dominance case: An update on the status of the TREB abuse of dominance case (a real estate board related abuse of dominance case set to be re-determined by the Competition Tribunal this fall, subject to the board’s effort to obtain leave to the Supreme Court of Canada).
Competition advocacy: Some remarks on key recent advocacy areas for the Bureau (i.e., where the Bureau does not have direct enforcement powers based on legislation/regulation), including telecom/wireless, taxi competition, and interestingly “competition between professions” (a topic the Bureau has focused on from time-to-time in the past – currently, according to the Bureau, in relation to pharmacists, dentists and veterinarians).
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