Canadian COMPETITION & ANTITRUST LAW

Leave. “Leave”, or judicial permission, is required from the federal Competition Tribunal in relation to several types of proceedings under the Competition Act and Competition Tribunal Act. For example, under section 103.1 of the Competition Act, private parties may make applications to the federal Competition Tribunal with leave under sections 75 (refusal to deal), 76 (price maintenance) and 77 (exclusive dealing / tied selling / market restriction) for a Tribunal order. The statutory test for leave for private access applications under sections 75 or 77 (refusal to deal or exclusive dealing / tied selling / market restriction) requires that the Tribunal have “reason to believe that an applicant is directly and substantially affected in the applicants’ business by any practice referred to in [sections 75 or 77] that could be the subject of a [Tribunal] order” (section 103.1(7)).  The Competition Act sets out a substantially similar test for private access applications under section 76 (price maintenance) but with a lower burden on applicants (see section 103.1(7.1)). The Tribunal has held, in the context of refusal to deal leave applications, that it should grant leave where there is “sufficient credible evidence to give rise to a bona fide belief that [an] applicant may have been directly and substantially affected in the applicant’s business by a reviewable practice” (see e.g., Barcode Systems Inc. v. Symbol Technologies Canada ULC, [2004] (Comp. Trib.); National Capital News Canada v. Canada (Speaker of the House of Commons)(2002), 23 C.P.R. (4^th) 77 (Comp. Trib.)). Another example of leave under the Competition Act relates to intervenor status before the Competition Tribunal.  The Competition Tribunal Act allows any person affected by Tribunal proceedings to intervene in proceedings with leave from the Tribunal (subsection 9(3)).  The Tribunal has held that to grant intervenor status, the following elements must be met: (i) the matter alleged to affect the person seeking leave to intervene must be legitimately within the scope of the Tribunal’s consideration (or must be a matter sufficiently relevant to the Tribunal’s mandate); (ii) the person seeking leave to intervene must be directly affected; (iii) all representations made by a person seeking intervenor status must be relevant to an issue specifically raised by the Commissioner; and (iv) the person seeking leave to intervene must bring a unique or distinct perspective to the Tribunal that will assist the Tribunal in deciding the issues before it (see e.g., Commissioner of Competition v. Canadian Waste Services Holdings Inc., 2000 Comp. Trib. 10;Commissioner of Competition v. The Canadian Real Estate Association, 2010 Comp. Trib. 12 (order allowing National FSBO Network Inc.’s motion for leave to Intervene)).

Leniency. Competition Bureau, Bulletin, Leniency Program:  “Under the [Competition Bureau’s] Leniency Program, the Bureau will recommend to the Public Prosecution Service of Canada (‘PPSC’) that qualifying applicants be granted recognition for timely and meaningful assistance to the Bureau’s investigation and any subsequent prosecution.  While leniency candidates are not eligible for a grant of immunity under the Bureau’s immunity Program, their early admission and cooperation respecting their role in a cartel offence can earn them a substantial basis for lenient treatment in sentencing.”  International Competition Network, Anti-Cartel Enforcement Manual, Chapter 4: “Leniency.  Leniency is a generic term to describe a system of partial or total exoneration from the penalties that would otherwise be levied on a cartel member in exchange for reporting its cartel membership to a competition agency and cooperating with the agency’s investigation.”  See Competition Bureau, Bulletin, Leniency Program.