We practice federal Canadian competition/antitrust law, have provided Canadian competition law advice to Canadian and international clients and provide a full range of competition law and foreign investment law services including in relation to the criminal conspiracy, merger, abuse of dominance, misleading advertising and deceptive marketing provisions of the federal Competition Act.
CANADIAN COMPETITION LAW
Legislation
Competition law in Canada is governed by the federal Competition Act (the “Act”). The Act is federal law of general application that contains criminal and civil sections and applies to most business activities in Canada, with few exceptions. The Act is administered and enforced by the federal Competition Bureau (the “Bureau”), which is a federal enforcement agency headed by the Commissioner of Competition (the “Commissioner”). While competition law was introduced in Canada in 1889 (one year before the introduction of the Sherman Act in the United States), Canadian competition law has for the most part only been actively enforced in Canada since 1986 when Canada’s new Act was introduced and when a number of changes were made to Canadian competition law to mark Canada’s modern era of competition law.
Purposes
The Act sets out four objectives of Canadian competition law as follows: (i) to promote the efficiency and adaptability of the Canadian economy, (ii) to expand opportunities for Canadian participation in world markets, (iii) ensuring that small and medium-sized enterprises have an equitable opportunity to participate in the Canadian economy and (iv) to provide consumers with competitive prices and product choices. As a practical matter, at least from the perspective of competition law enforcement agencies, the main over-riding purpose of competition law is to ensure that consumers benefit from competitive and undistorted markets.
Criminal and Civil Sections
The Act contains a number of criminal competition law sections. These include the criminal conspiracy (section 45), bid rigging (section 47), criminal misleading advertising (section 52) and deceptive telemarketing (section 52.1) sections. The Act also contains a number of civil (non-criminal) sections. These include the price maintenance (section 76), civil misleading advertising (section 74.01), predatory pricing (section 79 – abuse of dominance), refusal to deal (section 75), abuse of dominance (section 79) and tied selling, exclusive dealing and market restriction sections (all contained in section 77).
Enforcement
The Act is administered by the Bureau, which is a federal enforcement agency headed by the Commissioner, who investigates complaints by consumers and businesses. Under the Act, the Commissioner’s enforcement powers include the power to make voluntary information requests, obtain compulsory production orders and search warrants and orders to interview employees under oath. In addition, the Commissioner has the power to make applications to the federal Competition Tribunal (the “Tribunal”) for orders, including orders to stop conduct and/or pay civil penalties and refer criminal matters to the Director of Public Prosecutions (“DPP”) for criminal prosecution. Proceedings may be commenced under the Act by the Bureau or based on complaints from customers, competitors or industry participants. In addition to Bureau investigations, private parties may also in some cases commence private civil actions against persons contravening the criminal sections of the Act (including the criminal conspiracy and criminal misleading advertising sections) or seek “private access” to the Tribunal for Tribunal remedial orders (e.g., for a party to cease a particular type of conduct found to be anti-competitive).
Penalties
Contravention of the Act can be a serious matter and lead to significant penalties, lost time and negative publicity for individuals, companies, other types of organizations and their executives and personnel. The potential penalties under the Act include criminal fines, civil “administrative monetary penalties” (essentially civil fines), imprisonment, damages as a result of private civil actions and prohibition orders or injunctions to stop conduct.
For example, some of the specific potential penalties under the Act include criminal fines of up to CDN $25 million (for criminal conspiracy as of March 12, 2010), civil fines of up to CDN $10 million (for abuse of dominance) and imprisonment for up to 14 years (for criminal conspiracy as of March 12, 2010). Private parties (e.g., consumers or competitors) can also commence private actions for damages where they have suffered actual damage or loss as a result of a violation of the criminal provisions of the Act (e.g., criminal conspiracy). In addition, there is also potential director and officer liability under the Act for competition law violations. In other words, directors and officers of companies may, in addition to a company itself, also be exposed to criminal or civil penalties including fines or imprisonment.
As a practical matter, the Bureau is more likely to proceed criminally (as opposed to civilly) where there has been intentional or fraudulent anti-competitive conduct, as opposed to where, for example, conduct has been engaged in accidentally or negligently and where an organization takes immediate remedial steps to correct the conduct. With respect to the size of penalties, while the potential fines and other penalties can be very significant, in most cases the maximum penalties are not imposed. Having said that, the fines or other penalties that may be imposed for conduct that contravenes the Act can nevertheless have serious negative consequences for companies and individuals. For example, in one recent case involving a Manitoba real estate investment company, the company paid more than $150,000 in penalties as a result of operating an allegedly misleading promotional contest to promote real estate investment opportunities.
OUR CANADIAN COMPETITION LAW SERVICES
We practice federal Canadian competition/antitrust law, have acted for domestic and international clients in relation to hundreds of competition law matters and provide a full range of competition law and foreign investment law services in relation to the merger, conspiracy, bid-rigging, misleading advertising, promotional contest, deceptive marketing and foreign investment provisions of the Competition Act and Investment Canada Act. We practice federal law and so can and often have provided advice to clients across Canada and internationally. Our competition law and foreign investment law services include:
ADVERTISING AND MARKETING LAW
We offer a full range of Canadian misleading advertising and marketing law services in relation to print, online and new media advertising and marketing. Our services include advice in relation to:
- The “general” misleading advertising provisions of the Competition Act.
- Internet, online & new media advertising and marketing.
- Sales and promotions.
- Promotional contests.
- Multi-level marketing plans and pyramid selling.
- The deceptive marketing provisions of the Competition Act.
- Federal consumer packaging and labelling legislation.
For more see: Misleading Advertising.
BID-RIGGING
We offer a range of bid-rigging law services including advice on the application and scope of the criminal bid-rigging provisions of the Competition Act, bid and tender documentation and processes and compliance with the bid-rigging provisions. Our services include:
- Advice on the application of the criminal bid rigging provisions.
- Review and advice in relation to competitive tenders and proposals.
For more see: Bid-rigging.
COMPETITION BUREAU INVESTIGATIONS
We provide a full range of services in relation to civil and criminal competition law investigations, searches and compulsory and voluntary information requests. Our experience includes assisting clients with criminal and civil searches, compulsory production orders (section 11 orders), voluntary information requests and other Bureau contacts. Our services include:
- Attending on criminal and civil searches.
- Advice in relation to criminal and civil investigations and inquiries.
- Advice and assistance in relation to compulsory production orders.
- Advice and assistance with Competition Bureau investigations.
- Advice in relation to the Bureau’s immunity and leniency programs.
- Search and seizure guidelines.
COMPETITION LAW COMPLIANCE PROGRAMS
We offer a full range of competition law compliance services and have prepared a wide range of compliance programs and policies for clients across Canada in many industries. Recent projects include designing a national competition law compliance course (and compliance book – Competition Law & REALTORS) for organized real estate in Canada (a joint ACRE/CREA initiative) and compliance work for a number of major Canadian trade associations. Our services include:
- Competition law compliance programs.
- Competition law seminars for companies and trade associations.
- Corporate and trade association activities for competition law compliance.
- Competition law talks and “lunch and learns” for companies and law firms.
- Guidelines for board meetings, conferences and other meetings.
For more see: Competition Law Compliance Programs and Policies.
COMPETITION LAW LITIGATION
Our competition law litigation services include advice in relation to:
- Civil and criminal competition law litigation.
- Private actions and “private access” proceedings.
- Competition Bureau investigations and inquiries.
- Compulsory and voluntary information requests.
- Strategic advice in relation to marketplace issues and competitors.
- Remedies for refusals to deal.
- Criminal and civil searches.
COMPETITION LAW SEARCHES
We offer competition law services in relation to criminal and civil Competition Act searches, informal and formal Competition Bureau investigations and voluntary and compulsory information requests. Our services include:
- Advice in relation to competition law searches.
- Advice in relation to compulsory production orders.
- Search and seizure guidelines.
- Document retention policies.
CONSPIRACY AND COMPETITOR COLLABORATIONS
We offer a range of services in relation to the conspiracy provisions of the Competition Act and competitor collaborations, including advice in relation to trade association activities, joint ventures and strategic alliances, joint negotiations, joint marketing, joint buying, research and development and other competitor-competitor collaborations. Our services include:
- Application of the new criminal conspiracy rules to commercial activities.
- Application of the new civil agreements provision.
- Structuring agreements and joint ventures to comply with the Competition Act.
- Competition law compliance programs for companies and trade associations.
- The conduct of meetings and information exchanges.
- Application of the Competition Bureau’s immunity and leniency programs.
- Applications for binding Competition Act advisory opinions.
For more see: Conspiracy and Competitor Collaborations.
INVESTMENT CANADA ACT
We offer a full range of Investment Canada Act advice and services, including in relation to Investment Canada Act applications and notifications, advice regarding foreign investment regulations in Canada, application of the new national security review regime and restrictions on investments by state-owned enterprises (“SOEs”). Our services include:
- Advice on the application of the Investment Canada Act.
- Investment Canada Act applications and notifications.
- Canada’s new national security review regime.
- Restrictions on investments by SOEs.
- Advice on Canada’s merger control regime.
- Merger control notifications and filings.
MERGER CONTROL
We offer a full range of Canadian merger control and foreign investment law services to acquirers, targets and corporate/commercial and securities counsel, including advice as to whether a transaction is notifiable, whether a non-notifiable transaction may potentially raise competition law issues, strategic advice in relation to notification and the negotiation of remedies and assistance preparing pre-merger notification filings and transaction documents. Our services include:
- Application of the Competition Act to mergers.
- Application of the Investment Canada Act to Canadian investment.
- Pre-merger notification and Investment Canada Act filings.
- Competition law submissions to the Competition Bureau.
- Competition law provisions in transaction documents.
- Pre-merger conduct memoranda.
- Coordination of multi-jurisdictional mergers.
For more see: Canadian Merger Control.
PROMOTIONAL CONTESTS
We offer a full range of promotional contest law services and have assisted clients to design and run many promotional contests, including assistance with the preparation of short rules, long rules, statutory disclosure, winner release documentation and print and online marketing in compliance with the Competition Act and federal Criminal Code. Our services include:
- Application of the Competition Act and Criminal Code to promotional contests.
- Drafting short and long contest rules and statutory disclosure.
- Reviewing promotional contest marketing and advertising materials.
- Drafting winner release documentation.
- Compliance with the misleading advertising provisions of the Competition Act.
For more see: Promotional Contests.
TRADE ASSOCIATIONS
We offer a full range of competition law and compliance services for Canadian trade and professional associations in relation to all aspects of association activities including board and membership meetings, rules and by-laws, voluntary codes of conduct, compliance programs and policies, special projects and assistance in the event of a competition law investigation or search. Our services include:
- Trade association competition law compliance programs.
- Competition law compliance seminars and talks for association executives.
- Audits and compliance reviews of trade association activities.
- Advice on the application of the amended Competition Act.
- Vetting trade association meetings, conventions and communications.
- Reviewing association rules, bylaws, policies and voluntary codes.
- General competition law and competition compliance advice.
For more see: Canadian competition law and trade associations.
CANADIAN COMPETITION LAW LINKS & RESOURCES
LEGISLATION
Competition Act, R.S.C. 1985, c. C-34.
Competition Tribunal Act, R.S.C. 1985, c. 19 (2nd Supp.).
Competition Tribunal Rules, S.O.R./94-290.
Notifiable Transactions Regulations
Worldlii (legislation and Canadian competition law links)
COMPETITION BUREAU
Fee and Service Standards Handbook
COMPETITION LAW TOPICS
Advertising and Marketing Law
Pritchard, Brenda and Susan Vogt, Advertising and Marketing Law in Canada(Toronto: LexisNexis, 2009).
Young, David M.W. and Brian R. Fraser, Canadian Advertising and Marketing Law, looseleaf (Toronto: Carswell, 1990 – ).
Abuse of Dominance
Abuse of Dominance (Links & Publications)
Abuse of Dominance (Enforcement Guidelines)
Abuse of Market Power (Pamphlet)
Bid Rigging
Comparative Competition Law
Facey, Brian and Dany H. Assaf, Competition and Antitrust Law: Canada and the United States, 3rded. (Markham: LexisNexis Butterworths, 2006).
Roberts, R.J., The Competition Law of Canada and the United States (Toronto: Butterworths, 1992).
Competition Bureau
Fee and Service Standards Handbook
Competition Law and Intellectual Property
Competition Bureau, Intellectual Property Enforcement Guidelines.
Competition Policy
Gorecki, Paul K., The Objectives of Canadian Competition Policy (Montreal: Institute for Research on Public Policy, 1984).
Compliance Policies
Corporate Compliance Programs (Bulletin)
Competition Tribunal
Compliance Policies
Corporate Compliance Programs (Bulletin)
Confidential Information
Competition Bureau, Information Bulletin, Communication of Confidential Information Under the Competition Act (1995)
Conspiracy
Cartels (Links & Publications)
Competitor Collaboration Guidelines (Enforcement Guidelines)
Competition Bureau, Reaching an Agreement with Competitors (Pamphlet)
Sentencing and Leniency in Cartel Cases (Information Bulletin)
Setting Your Own Price (Pamphlet)
General
Wikipedia – Canadian Competition Law
Canadian Competition Policy Review Panel
Canadian Law – Canadian Competition / Antitrust Law
Historical
Bureau of Competition Policy, Canadian Competition Law and Policy: A Centennial Bibliography, 1889-1989 (Ottawa: Consumer and Corporate Affairs, 1990).
Khemani, R.S. and W.T. Stanbury, eds., Historical Perspectives on Canadian Competition Policy (Halifax: The Institute for Research on Public Policy, 1991).
Khemani, R.S. and W.T. Stanbury, eds., Canadian Competition Law and Policy at the Centenary (Halifax: The Institute for Research on Public Policy, 1991).
Law and Economics
Trebilcock, Michael, Ralph A. Winter, Paul Collins and Edward M. Iacobucci, The Law and Economics of Canadian Competition Policy (Toronto: University of Toronto Press, 2002).
Merger Control
2010 Merger Notification Transaction-Size Threshold
Draft Fee and Service Standards Handbook
Draft Fee and Services Handbook for Merger-Related Matters
Efficiencies in Merger Review (Bulletin)
Fee and Service Standards Handbook
Hostile Transactions: Bureau Policy on Disclosure Information
The Merger Enforcement Guidelines as Applied to a Bank Merger
Merger Remedies in Canada (Bulletin)
Merger Review Performance Report (2007 – 2010)
Merger Review Process Guidelines (Enforcement Guidelines)
Notifiable Transactions Regulations
Notifiable Transactions (Interpretation Guidelines)
Notifiable Transactions (Procedures Guide)
Campbell, Andrew Neil, Merger Law and Practice: The Regulation of Mergers Under the Competition Act(Carswell Legal Publications, 1997).
Crampton, Paul S., Mergers and the Competition Act(Toronto: Carswell, 1990).
Misleading Advertising
Application of the Competition Act to Representations on the Internet (Enforcement Guidelines)
Competition Bureau, Bait and Switch Selling (Pamphlet)
Competition Bureau, Deceptive Prize Notices (Pamphlet)
Misleading Representations (Links & Publications)
Misleading Representations (Pamphlet)
Misleading Representations: Criminal or Civil Track (Guidelines)
The Ordinary Selling Provisions of the Competition Act (Bulletin)
Competition Bureau, Promotional Contests – Section 74.06 of the Competition Act
Competition Bureau, Telemarketing: Section 52.1 of the Competition Act
Competition Bureau, What You Should Know About Telemarketing (Pamphlet)
Multi-level Marketing and Pyramid Selling
Competition Bureau, Section 55 and 55.1 of the Competition Act – Multi-level Marketing and Pyramid Selling.
Competition Bureau, Multi-level Marketing and Pyramid Selling (Pamphlet).
Packaging and Labelling
Consumer Packaging and Labelling Act
Guide to the Consumer Packaging and Labelling Act
Guide to the Textile Labelling and Advertising Regulations
Private Access
Competition Bureau, Information Bulletin on Private Access to the Competition Tribunal (2005).
Promotional Contests
Promotional Contests (Enforcement Guidelines)
Restraint of Trade
Trebilcock, Michael J., The Common Law of Restraint of Trade: A Legal and Economic Analysis(Toronto: The Carswell Company, 1986).
Refusal to Deal
Competition Bureau, Refusal to Supply (Pamphlet).
Regulated Conduct
Competition Bureau, Technical Bulletin on “Regulated Conduct” (2006).
Trade Associations
For competition law and associations links and resources see:
Competition Law and Associations – Links and Resources
Treaties
Treaty Between the Government of Canada and the Government of the United States of America on Mutual Legal Assistance.
Agreement Between the Government of Canada and the Government of the United States of America Regarding the Application of Their Competition and Deceptive Marketing Practices Laws.
Agreement Between the Government of Canada and the European Communities Regarding the Application of Their Competition Laws.
Cooperation Agreement Between the Commissioner of Competition (Canada), the Australian Competition and Consumer Commission and the New Zealand Commerce Commission Regarding the Application of their Competition and Consumer Law.
Memorandum of Understanding Between the Commissioner of Competition (Canada) and the Fiscal Nacional Economico (Chile) Regarding the Application of their Competition Laws.
Chapter J (Competition Policy, Monopolies and State Enterprises), Canada-Chile Free Trade Agreement.
Chapter Seven (Competition Policy), Free Trade Agreement Between the Government of Canada and teh Government of the State of Israel.
Chapter XI (Competition Policy), Canada-Costa Rica Free Trade Agreement.
Canada-UK Cooperation Agreement.
BOOKS AND REPORTS
Affleck, Donald S. and K. Wayne McCracken, Canadian Competition Law, looseleaf (Toronto: Carswell, 1989 – ).
Addy, George N. and William L. Vanveen, Competition Law Service, looseleaf (Aurora: Canada Law Book Inc., 1988 – ).
Affleck, Donald S. and K. Wayne McCracken, Canadian Competition Law, looseleaf (Toronto: Carswell, 1989 – ).
Bureau of Competition Policy, Canadian Competition Law and Policy: A Centennial Bibliography, 1889-1989 (Ottawa: Consumer and Corporate Affairs, 1990).
Canadian Bar Association, Competition Law for the 21st Century: Papers of the Canadian Bar Association Competition Law Section 1997 Annual Conference(New York: Juris Publishing, 1998).
Canadian Bar Association, Papers of the Canadian Bar Association Annual Fall Conference 1998(New York: Juris Publishing, 1999).
Canadian Bar Association, Papers of the Canadian Bar Association Annual Fall Conference 1999(New York: Juris Publishing, 1999).
Collins, Paul and Carolyn Naiman, Competition Policy (Toronto: Faculty of Law, University of Toronto 2007).
Collins, Paul and Carolyn Naiman, The Practice of Competition Law: Effective Management of Competition Law Risk (Toronto: Faculty of Law, University of Toronto, 2007).
Competition Policy Review Panel, Final Report, Compete to Win (June, 2008), available at http://www.ic.gc.ca/eic/site/cprp-gepmc.nsf/eng/h_00040.html.
Dunlop, Bruce, David McQueen and Michael Tribilcock, Canadian Competition Policy (Toronto: Canada Law Book, 1987).
Facey, Brian and Dany H. Assaf, Competition and Antitrust Law: Canada and the United States, 3rded. (Markham: LexisNexis Butterworths, 2006).
Flavell, C.J. Michael, Canadian Competition Law: A Business Guide(Toronto: McGraw-Hill Ryerson, 1989).
Flavell, C.J. Michael, The Canadian Competition Law Handbook(Scarborough, Carswell, 1997).
Goldman, Calvin S. and John D. Bodrug, eds., Competition Law of Canada, looseleaf (New York: Juris, 1988 – ).
Gorecki, Paul K. and W.T. Stanbury, The Objectives of Canadian Competition Policy, 1888-1983 (Montreal: Institute for Research on Public Policy, 1984).
Iacobucci, Edward, Competition Policy (Toronto: University of Toronto, 2010).
Khemani, R.S. and W.T. Stanbury, eds., Historical Perspectives on Canadian Competition Policy (Halifax: The Institute for Research on Public Policy, 1991).
Khemani, R.S. and W.T. Stanbury, eds., Canadian Competition Law and Policy at the Centenary (Halifax: The Institute for Research on Public Policy, 1991).
Musgrove, James, ed., Fundamentals of Canadian Competition Law(Toronto: Thomson Carswell, 2007).
Pitel, Stephen G.A., Litigating Conspiracy: An Analysis of Competition Class Actions (Toronto: Irwin Law, 2006).
Pritchard, Brenda and Susan Vogt, Advertising and Marketing Law in Canada(Toronto: LexisNexis, 2009).
Roberts, R.J., The Competition Law of Canada and the United States (Toronto: Butterworths, 1992).
Stanbury, W.T., Notes on Conspiracy Cases Under Canadian Competition Legislation (Vancouver: Faculty of Commerce, University of British Columbia, 1980).
Stikeman Elliott, Competition Act and Commentary (Markham: Butterworths Canada, 2010).
Szentesi, Steve, Competition Law and REALTORS, What You Say and Do Matters (Alliance for Canadian Real Estate Education, 2010).
Trebilcock, Michael, Ralph A. Winter, Paul Collins and Edward M. Iacobucci, The Law and Economics of Canadian Competition Policy (Toronto: University of Toronto Press, 2002).
Wakil, Omar, ed., The 2010 Annotated Competition Act(Toronto: Thomson Carswell, 2009).
Young, David M.W. and Brian R. Fraser, Canadian Advertising and Marketing Law, looseleaf (Toronto: Carswell, 1990 – ).
COMPETITION LAW BLOGS AND LAW PAGES
Antitrust and Competition Policy BlogA blog by D Daniel Sokol. Includes links to new research, speeches, laws, conferences etc.
Antitrust Law BlogA blog by Sheppard Mullin.
Antitrust ReviewA US-based blog updated and edited by Hanno Kaiser, David Fischer and Manfred Gabriel.
Antitrust Commentary A US blog run by Matthew S. Wild, Senior Counsel at Levitt & Kaizer.
Antitrust Lawyer BlogA blog by antitrust Lawyers Doyle, Barlow & Mazard PLLC.
The Antitrust Hotch PotchA blog by by Prof Damien Geradin.
Canadian Bar Association – National Competition Law Section
Canadian Competition Policy Review Panel
Canadian Law – Canadian Competition / Antitrust Law
Canadian Competition Policy Page (Tom Ross – UBC)
Chillin’ CompetitionA blog by Dr Nicolas Petit, lecturer in competition law and economics at the Institute for European Legal Studies (IEJE) Liege Law Faculty and co-director of the IEJE.
Competition Law: Australian Competition Law (Australia)
Competition Law: A View From Hungary (Hungary)
International Competition Network (ICN)
University of Toronto Faculty of Law – Canadian Competition Law Page
CANADIAN COMPETITION LAW LINKS
For more information about Canadian competition law or our competition law services visit our: Abuse of Dominance, Advertising and Marketing Law, Bid Rigging, Canadian Competition Law, Canadian Competition Law Compliance, Canadian Competition Law Home, Competition Act Amendments, Competition Bureau Investigations, Competition Law Courses and Conferences, Competition Law Litigation, Competition Law Publications, Competition Law Resources, Competition Law Services, Conferences, Conspiracy and Competitor Collaborations, Conspiracy – FAQs, Global Competition / Antitrust Law Resources, Global Competition Law Updates, Investment Canada Act, Merger Control, Merger Control FAQs, Private Actions, Promotional Contests, Publications, Refusal to Deal, Team, Trade Associations or Trade Association Cases pages or visit our website at www.NortonStewart.com.
CONTACT US
We provide Canadian competition law and consulting services to Canadian and international clients. For more information about our services contact us at steve@nortonstewart.com, info@competitionlawcanada.com or call us on +1 604 687 0555 or +1 778 867 5558. Visit us on the web in Toronto at www.torontocompetitionlawyer.com or www.torontocompetitionlaw.com.