“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,  (Comp. Trib.); National Capital News Canada v. Canada (Speaker of the House of Commons)(2002), 23 C.P.R. (4th) 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)).
American Antitrust Institute, Amicus Brief, Lexmark International v. Static Control Components: “When a firm successfully deceives, it is unjustly enriched at the expense of other market participants. Deception injures consumers by inducing mistaken demand for inferior or unneeded products, raising search costs, and sometimes creating “lemon” markets where lower-quality goods or services drive out higher-quality goods.”
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.
Competition Bureau, Leniency Program: Frequently Asked Questions: A ‘leniency marker’ is the acknowledgement given to a leniency applicant (Applicant) that records the date and time of an Applicant’s application to the Leniency Program. It establishes the Applicant’s position in line in relation to other individuals or organizations seeking to participate in the Leniency Program. The leniency marker guarantees the Applicant’s position in line, subject to the Applicant meeting all of the other criteria of the Leniency Program.”
Foulidis v. Ford, 2012 ONSC: “The plaintiff must prove four things on the balance of probability to prove a libel in this case: (1) that the defendant spoke the words in issue; (2) that the defendant published the words in issue to one or more third parties; (3) that the words in issue referred to the plaintiff; (4) that the words in issue were defamatory of the plaintiff.”
Canadian Bar Association, “Defamation: Libel and Slander” (online): “Libel is the type of defamation with a permanent record, like a newspaper, a letter, a website posting, an email, a picture, or a radio or TV broadcast. If you can prove that someone libeled you, and that person does not have a good defence … then a court will presume that you suffered damages and award you money to pay for your damaged reputation. But going to Supreme Court is expensive and even if you win, you may not get as much as it costs you to sue. In deciding on damages, the Court will consider your position in the community. For example, if you are a professional, damages may be higher.”
R. v. David Stucky, 2006 CanLII 41523 (Ont. S.C.): “A lift letter is a promotional technique, routinely used in direct mail promotions, urging further consideration of the initial offer before its expiration.”
A type of spam. Facebook, “News Feed FYI: Cleaning Up News Feed Spam” (April 10, 2014): “’Like-baiting’ is when a post explicitly asks News Feed readers to like, comment or share the post in order to get additional distribution beyond what the post would normally receive.”
Generally speaking, advertising or marketing in Canada can be misleading under federal (e.g., the federal Competition Act) or provincial (e.g., consumer protection legislation) where a representation or advertising claim is either literally false or misleading (the latter which may take into consideration the “general impression” of an advertising claim). With respect to the literal meaning of an advertising claim, the Supreme Court has held: “The phrase ‘literal meaning of the terms used therein’ [for the purposes of the Quebec Consumer Protection Act] does not raise any interpretation problems. It simply means that every word used in a representation must be interpreted in its ordinary sense” (Richard v. Time Inc., 2012 SCC 8).
For information about my regulatory services: contact
For more regulatory law updates follow me on Twitter: @CanadaAttorney
Visit my Google+ page for more updates: Canadian Competition & Regulatory