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August 29, 2014

Earlier today, Canada’s Competition Bureau announced that it has launched a new Quarterly Report as part of its ongoing “Transparency Initiative” (i.e., to increase its communication to Canadians regarding the work the Bureau does). According to the Bureau, its new Quarterly Report “presents statistics relating to a variety of intake measures, merger and non-merger enforcement matters, as well as advocacy, outreach and partnership initiatives”.  I discuss a few key points below that caught my eye.

In reading over the Bureau’s inaugural Quarterly Report earlier today, a few points struck me as interesting:

Complaints: I frequently discuss with clients and prospects how many complaints the Bureau receives (as compared to how many cases they commence formal or informal inquiries in relation to). The Bureau received 14,515 complaints and information requests in 2013-2014 (to June, 2014).

Investigations & Inquiries: The Bureau has commenced 40 new (non-merger related) investigations over the past year and currently has 104 ongoing investigations. According to the Bureau, it currently has 65 ongoing formal inquiries ongoing (an “inquiry” is an internal Bureau administrative procedure which, once commenced, gives the Bureau a wider range of enforcement powers).

Search warrants and section 11 orders: While the Bureau recently announced that it would generally utilize “section 11 orders” as a matter of course in inquiries, I found it slightly interesting that in fact over the past year the Bureau has exercised 35 search warrants compared to only 7 section 11 orders. Presumably the larger volume of search warrants relate to the Bureau’s relatively heightened focus on criminal competition law investigations, particularly relating to its ongoing bid-rigging and conspiracy cases (e.g., auto parts bid-rigging, Quebec engineering / Charbonneau related cases, etc.).

Alternative case resolutions: The Bureau has fairly wide enforcement discretion. Among its enforcement options is to utilize “alternative case resolution” options, such as through warnings, negotiated settlements, requiring the adoption of compliance programs, etc. In this respect, the Bureau has reported that it has agreed to alternative case resolutions in seven matters, which have included requiring parties to adopt competition compliance programs.

Litigation: Both Canada’s former (Melanie Aitken) and current (John Pecman) Commissioners of Competition have taken the position (and been generally seen) as enforcement focused. In this respect, the Bureau reports that it currently has five matters before the federal Competition Tribunal and seventeen matters before the courts.

Criminal Fines: A few key fine statistics: More than $55 million imposed against companies and individuals over the past year. Interestingly, the large proportion of these fines (more than $49 million) were represented by bid-rigging fines, which has clearly been a Bureau priority over the past several years (notably in relation to the Canadian aspects of the ongoing auto parts cartel investigation).

Individual liability: For a few years now the Bureau has been discussing and indicating an increased appetite to seek liability against individuals. The Bureau’s Quarterly report states that six individuals were sentenced for Competition Act violations over the past year. Interestingly, despite the perception of some that individuals don’t ever go to jail in Canada for competition law violation, the Bureau reports that combined individual jail time over the past year totaled about three years.

Merger related matters: Interestingly, the Bureau’s Quarterly Report confirms that a significant portion of the Bureau’s work is generally devoted to merger review and clearance matters – over the past year: 106 advance ruling certificates issued; 107 no action letters issued; and 221 concluded merger review matters.

For a copy of the Bureau’s new Quarterly Report see: here.

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