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.
While the Competition Bureau conducts criminal investigations in private, the Globe’s reporting indicates that this investigation follows earlier 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.
This case is, however, very interesting and raises a number of important issues for companies and individuals that may be involved in the Bureau’s investigation. These include whether they have violated the Competition Act, should seek immunity or leniency from the Bureau or obtain advice relating to potential criminal exposure related to the document production process (or more broadly).
The case also shows the Bureau’s interest in pursuing competition in high-consumer-impact sectors, including real estate and construction. In the real estate sector, it follows the recent landmark TREB abuse of dominance case. See here.
From a competition compliance and conspiracy/bid-rigging perspective, condominium corporations may also consider seeking advice related to potential criminal or civil exposure in relation to the Bureau’s production orders and enhancing or adopting guidelines and procedures to reduce the potential of collusion or bid-rigging among competing suppliers to their corporations.
Condominium owners and boards who believe they may have suffered loss or damage as a result of any of the alleged anti-competitive conduct under investigation by the Bureau may wish to consider the scope for actions to recover those damages under the private remedy set out in section 36 of the Competition Act.
It is also worth noting that the Ontario Condominium Act was amended in December 2015 to forbid condominium corporations from entering into certain contracts or transactions unless the procurement process meet certain requirements to be prescribed in a regulation. To date section 39.1 has not yet been proclaimed by the Lieutenant Governor and the associated regulations have yet to be published.
The Ontario Ministry of Government and Consumer Services that is responsible for the Condominium Act has indicated that the regulations will likely require sealed bids for certain procurement transactions and set out the procedures that would need to be followed and under what circumstances (e.g., for contracts exceeding a certain value). In light of the Globe’s article, condominium boards may wish to consider making representations to the Ministry about the regulations that are in the process of being drafted if they have not already done so.
For more information, see Conspiracy, Bid-Rigging, Competition Bureau Investigations and Competition Bureau Immunity & Leniency Programs.
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