Canadian COMPETITION & ANTITRUST LAW

Waiver.  The Competition Bureau requires applicants in its Immunity Program to consent to the disclosure of information to foreign law enforcement agencies.  Competition Bureau, Immunity Program: Frequently Asked Questions: “… the Bureau will not share the identity of an immunity applicant, or the information provided, with a foreign law enforcement agency unless the immunity applicant provides a waiver giving the Bureau consent to do so. It is important to note that this confidentiality protection is an added benefit to being first–in under the Immunity Program. However, as part of an applicant’s ongoing co-operation, the Bureau will expect a waiver allowing communication of information with jurisdictions to which the applicant has made similar applications for immunity or leniency.”

Web crawler. Government of Canada, Canada’s Anti-Spam Legislation (www.fightspam.gc.ca), FAQs:  “… computer programs that scan websites, usenet groups and social networking sites, trolling for posted electronic addresses.”

Whistleblower. International Competition Network, Anti-Cartel Enforcement Manual, Chapter 4: “A whistleblower may be an employee who is aware that his/her employer is a member of [a] cartel, but was not personally involved.  A whistleblower would normally ask that his/her identity be protected as far as possible out of fear of victimization and, similarly to an informant, the decision to report on a particular cartel can risk his/her continued employment and/or status and reputation within a particular organization or industry.  Some jurisdictions provide whistleblowers who disclose information with legal protection from victimization and dismissal from employment as a result of their disclosures.”  Canada is one such jurisdiction.  The Competition Act contains specific whistleblower protections.  In this regard, section 66.1 of the Act provides that any person with “reasonable grounds” to believe that a person has committed an offence under the Act may notify the Commissioner [of Competition] and request that his/her identity be kept confidential.  Section 66.2 further provides that no employer shall dismiss, suspend, demote, discipline, harass or otherwise disadvantage an employee (or deny an employee a benefit of employment) based on the fact that the employee, acting in good faith and on the basis of reasonable belief: (i) reported an offence committed by the employer or other person, (ii) refused to do anything that is an offence under the Act, or (iii) took steps to avoid an offence under the Act.  The Competition Bureau also takes the position that an effective competition law compliance program should include a reporting mechanism that, among other things, should “educate employees who are in a position to engage in, or be exposed to, conduct in potential breach of the [Competition Act] on the Bureau’s Immunity Program and the whistleblowing provisions …” of the Act.  See Competition Bureau, Bulletin, Corporate Compliance Programs (2010).

Word-of-mouth marketing. Canadian Marketing Association, Code of Ethics and Standards of Practice: “Also sometimes referred to as ‘buzz’ marketing, word-of-mouth marketing is capturing the attention of consumers and the media to generate favourable word of mouth about a brand, product, service or organization.”

Written opinion. Under section 124.1 of the Competition Act, any person may apply to the Commissioner of Competition, together with supporting information, for a binding written opinion regarding the application of any provision of the Act.  Written opinions can be a practical way for businesses and individuals to reduce potential competition law liability for proposed conduct.  A written opinion is binding on the Commissioner if all material facts relating to the proposed conduct have been submitted.  If issued, written opinions remain binding for as long as the material facts on which they are based remain substantially unchanged and the conduct is carried out substantially as proposed.  Binding written opinions are available, subject to the Commissioner’s discretion to issue them, for proposed conduct only.  In other words, the Bureau will not issue advisory opinions for existing business conduct.  Written opinions are available under the following provisions of the Act, among others: resale price maintenance (section 76), exclusive dealing / tied selling / market restriction (77), abuse of dominance (79), civil agreements provision (90.1), conspiracy (45), misleading advertising and deceptive marketing practices (52, 55.1, 74.01, 74.06), deceptive telemarketing (52.1), deceptive prize notices (53), multi-level marketing and pyramid selling (55 and 55.1), performance claims (74.01(1)(b)) and promotional contests (74.06).  See Competition Act section 124.1; Competition Bureau, website, Legal Actions and Opinions section; Competition Bureau, Bulletin, Competition Bureau Fee and Service Standards Handbook for Written Opinions; definition of “advisory opinion”.