Archive for the 'Competition Bureau' Category
I saw this rather fine note recently by Davies Ward Phillips & Vineberg LLP (Anita Banicevic, Erika Douglas and David Stolow). We are reprinting it with permission.
Businesses operating in Canada should be aware of a recent trend towards greater regulation and enforcement action surrounding pricing representations where additional costs are not clearly disclosed up front. Last week, the Minister of State for Transport announced that the Canada Transportation Agency is proceeding with regulations to require Canadian air carriers to include all fees, charges and taxes in advertised prices. This trend towards requiring up-front disclosure of all fees and charges in any advertised pricing is consistent with the enforcement initiatives recently undertaken by the Competition Bureau (the “Bureau”) as well as the approach taken in recent class actions involving pricing representations brought in Québec and Ontario. The Bureau’s aggressive enforcement approach combined with an increase in class actions concerning pricing representations suggests it may be prudent for businesses to consider disclosing all fees imposed by the seller and applicable to all customers up front in any advertising.
The Competition Bureau announced last Friday in a news release that another seven individuals have pleaded guilty to criminal conspiracy charges in relation to the Bureau’s ongoing gasoline price-fixing investigation in Quebec.
The Vancouver Sun, Montreal Gazette, Huffington Post and others have reported that Rogers has launched constitutional arguments in response to allegations by the federal Competition Bureau that it misled consumers with performance claims in relation to its Chatr cell phone brand.
In particular, according to media reports, Rogers is arguing that the civil “performance claim” provision of the Competition Act is contrary to the freedom of expression rights under the Charter and that the penalties for civil misleading advertising are unconstitutional.
On January 19, 2012, the Competition Tribunal set hearing dates in the ongoing abuse of dominance case The Commissioner of Competition v. The Toronto Real Estate Board (see Scheduling Order).
The evidentiary portion of the hearing in this case is scheduled to begin on September 10, 2012 in Toronto.
A claim against two major real estate boards and their executives for breaching terms of an earlier settlement agreement, common law and Competition Act conspiracy and certain economic torts survived a motion to dismiss last week. The reasons for judgment provide insight into the sufficiency of pleadings in cases involving allegations of anti-competitive conspiracies against businesses and their executives.
Last Friday, Mr. Justice Kenneth L. Campbell of the Ontario Superior Court of Justice dismissed a motion by the defendants in Dale v. The Toronto Real Estate Board to dismiss Realtysellers (Ontario) Limited’s (“Realtysellers”) action against The Canadian Real Estate Board (“CREA”), The Toronto Real Estate Board (“TREB”) and 47 other defendants (for a copy of the decision see: Dale v. The Toronto Real Estate Board).
FEBRUARY 1-3, 2012 – Vancouver
The Antitrust Law Section of the American Bar Association and the International Bar Association (IBA) will be holding their bi-annual International Cartel Workshop in Vancouver from February 1-3, 2012 at the Fairmont Hotel Vancouver.
From the American Bar Association:
“The International Cartel Workshop, recognized globally as the premier international cartel program offered anywhere, is presented only once every two years. The next Workshop, which will have many new features, will be held in Vancouver, Canada during February 1-3, 2012. The 2012 program will continue the Workshop’s tradition of instruction by demonstration, with experienced faculty from around the globe taking you inside a hypothetical international cartel matter — from detection by government enforcers to the disposition of government prosecutions and private damage claims. The Workshop will also highlight new developments in the law and leniency practices around the world, with leading enforcers and experienced private practitioners demonstrating how critical decisions are made on both sides of the table and providing examples of important interactions between counsel and enforcers. The 2012 Workshop’s international faculty includes many of the most accomplished cartel attorneys in the world, as well as the most senior cartel enforcement officials from a variety of jurisdictions.”
For more information about the joint ABA/IBA Cartel Workshop see:
American Bar Association – Antitrust International Cartel Workshop
On January 6, 2012, the Competition Bureau announced that two companies pleaded guilty of fixing the price of polyurethane foam and were fined a total of $12.5 million (see: Competition Bureau Sends Signal to Price-Fixers with $12.5 Million Fine).
In making the announcement, the Bureau said:
“’Yesterday’s guilty plea is the first conviction under Canada’s amended conspiracy law,’ said Melanie Aitken, Commissioner of Competition. ‘This investigation highlights the Bureau’s reinvigorated mandate to stop consumer harm caused by price-fixing, and to secure significant fines for these serious criminal offences.’
The charges are the first to arise from the Bureau’s investigation into price-fixing cartel in the polyurethane foam industry. Anyone with information relating to this investigation is encouraged to contact the Competition Bureau.
The Bureau’s investigation benefitted from cooperation under the Bureau’s Immunity and Leniency Programs, which create incentives for parties to address their criminal liability by cooperating with the Bureau in its ongoing investigation and prosecution of other alleged cartel participants.
Under the Competition Act, an agreement between competitors to fix prices, allocate markets or restrict output in Canada is a criminal offence. In March 2010, amendments to the conspiracy provision of the Act came into force.”
The past year has been a busy and eventful one for Canadian advertising and marketing law. Recent developments since 2010 span most key areas including the application of the “general misleading advertising” provisions of the Competition Act, the use of disclaimers, social media, e-mail marketing, performance claims and telemarketing.
At the same time, new legislation has been introduced that will impact how companies market in Canada, most notably the new federal anti-spam legislation (Bill C-28), and new cross-border enforcement initiatives were announced including a new international do-not-call enforcement network co-chaired by the CRTC.
These developments mean that it remains important for companies to effectively and efficiently navigate through Canadian advertising and marketing rules. Some of the more interesting and noteworthy developments in 2010 and 2011 are discussed below.
The past year has been a busy one for Canadian competition law.
Developments in 2011 include new cases, enforcement and legislation in most key areas including abuse of dominance (the Competition Bureau’s ongoing challenge of The Toronto Real Estate Board and CREA settlement in late 2010), criminal conspiracy (developments in price-fixing class action litigation and some Bureau enforcement), refusal to deal (several important private access section 75 cases, including a decision of the Federal Court of Appeal), contested mergers (in the waste and airline markets), price maintenance (the merchant fees case involving Visa and MasterCard) and misleading advertising (involving Bell Canada, Rogers and others).
The Competition Bureau is testing the new rules under Canada’s Competition Act, which came into force in 2009 and 2010, and private plaintiffs are creating new law in a number of ongoing competition/antitrust class actions in Canada (principally indirect purchaser price-fixing cases relating to the sale and supply of dynamic random access, or “DRAMs”, high fructose corn syrup and computer operating systems).
At the same time, several new pieces of legislation have been introduced including a federal omnibus crime bill, which will eliminate conditional sentences for some competition law offences, and sweeping new anti-spam legislation (Bill C-28 or “FISA“) that once in force will be among the strictest anti-spam regimes in the world.
The Commissioner of Competition, and other federal enforcement officials including the RCMP, have also expressed intentions to adopt tougher enforcement stances in relation to competition law and other white collar crime.
In general, these developments mean that it remains important for Canadian companies, organizations and their executives to maintain a practical awareness of Canadian competition law.
Some of the key competition law and related developments of 2011 include:
Most association activities are legitimate and unlikely to raise competition law concerns. However, given that many, if not most, association activities involve the direct interaction of competitors, it is prudent for association executives, staff and their advisors to take practical steps to reduce potential competition law risk.
The Wall Street Journal reported earlier today that the Ontario Securities Commission (“OSC”) has approved Alpha (Alpha Trading Systems Limited Partnership and Alpha Exchange Inc.), Canada’s largest alternative trading platform to the TSX, as a stock exchange (see: Ontario Securities Regulator Allows Alpha to be Exchange).
The OSC’s Recognition Order sets out the terms and conditions of Alpha’s recognition as an exchange and the review process to be followed for the rules, policies and other similar instruments of Alpha Exchange.
The TMX, which owns and operates the TSX, is currently subject to a Cdn. $3.8 billion friendly bid by Maple Group, which requires, in addition to Provincial securities regulatory approvals in Ontario, Quebec, Alberta and British Columbia, clearance by the federal Competition Bureau. Alpha’s shareholders include a number of the Maple Group consortium’s investors including CIBC, Dejardins, National Bank and Scotia.
Last week the Commissioner of Competition expressed “serious concerns” about the Maple/TMX transaction, which is currently subject to a second stage review by the Bureau (see: Commissioner of Competition Addresses Current Enforcement Priorities in Two Wide-ranging Talks in Vancouver).
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For the OSC’s Notice of Approval and Recognition Order see:
Recognition of Alpha Trading Systems Limited Partnership and Alpha Exchange Inc. as an Exchange
The European Commission announced earlier today that it was opening formal proceedings to investigate sales of e-books. In particular, the Commission has opened a cartel investigation to determine whether several international publishers, including Hachette Livre, Harper Collins, Simon & Schuster and Penguin have engaged in anti-competitive practices with respect to the sale of e-books.
In making the announcement, the Commission said in its news release:
“The European Commission has opened formal antitrust proceedings to investigate whether international publishers Hachette Livre (Lagardère Publishing, France), Harper Collins (News Corp., USA), Simon & Schuster (CBS Corp., USA), Penguin (Pearson Group, United Kingdom) and Verlagsgruppe Georg von Holzbrinck (owner of inter alia Macmillan, Germany) have, possibly with the help of Apple, engaged in anti-competitive practices affecting the sale of e-books in the European Economic Area (EEA), in breach of EU antitrust rules. The opening of proceedings means that the Commission will treat the case as a matter of priority. It does not prejudge the outcome of the investigation.
The Commission will in particular investigate whether these publishing groups and Apple have engaged in illegal agreements or practices that would have the object or the effect of restricting competition in the EU or in the EEA. The Commission is also examining the character and terms of the agency agreements entered into by the above named five publishers and retailers for the sale of e-books. The Commission has concerns, that these practices may breach EU antitrust rules that prohibit cartels and restrictive business practices (Article 101 of the Treaty on the Functioning of the European Union – TFEU).”
In a small stroke of serendipity, I bumped into Paul Crampton here in Vancouver last week, who is on the Tribunal hearing the Commissioner’s challenge of the CCS Corporation / Complete Environmental waste merger (a merger to monopoly case and the first fully contested merger case before the Tribunal in six years).
In chatting with Paul, now a Federal Court judge and known in the competition bar for a variety of clever turns of phrase, such as raising a finger in the air and rhetorically requesting that a thorny legal or economic issue be “decoded” (usually for the benefit of others in the room less learned than Paul in such matters), I threatened to quote him on my blog.
It just so happened that the previous day, in working through a product market definition question, I had come across one of his quotes from his 1990 book on mergers.
So, as threatened, here is the quote, which I thought rather a fine one by Paul on the geeky topic of market definition in competition/antitrust law cases (and rather apropos following my bumping into him after he had heard argument in the BC waste merger case):
“The importance of preparing a well articulated argument in support of one’s view of the ‘relevant market’ in the context of a competition law case cannot be overstated. Put succinctly, the party who manages to convince the court of his view of this matter generally wins the case, because as the purported market is enlarged, the relative significance of the merging parties within the market usually decreases. Conversely, as a market is defined progressively more narrowly, the competitive significance of challenged conduct typically increases.” (Paul Crampton, Mergers and the Competition Act (Toronto: Carswell, 1990)).
We wish Paul and the Tribunal all the best of luck in “decoding” the waste merger.
The Commissioner of Competition, Melanie Aitken, addressed current enforcement priorities in two engaging and wide-ranging talks in Vancouver this evening: a keynote speech at a reception hosted by the University of British Columbia, National Centre for Business Law at the Four Seasons and a Vancouver Competition Policy Roundtable meeting organized by Professor Tom Ross of the Sauder School of Business.
TMX News Release (November 29, 2011)
“The Commissioner advised Maple and TMX Group that she has serious concerns about the likely competitive effects of the proposed transactions in the current environment, primarily in connection with equities trading and clearing and settlement services in Canada.
The Commissioner indicated that she has not reached a final conclusion and that her current views may be affected by further factual information and developments, which may include changes in the applicable securities regulatory regime, and any commitments or other remedial measures that Maple may be prepared to take to address her concerns.
Maple and TMX Group intend to continue to work closely with staff of the Competition Bureau to address the Commissioner’s concerns, including by identifying appropriate remedial measures. As Maple has stated previously, it is committed to working constructively with all of the relevant regulators, including Canadian securities regulators, to address any questions they may have so that the proposed transactions can proceed in the best interests of TMX Group, its shareholders and the Canadian capital markets. Maple and TMX Group continue to strongly believe that the proposed transactions will substantially benefit all capital market participants.”
The National Competition Law Section of the Canadian Bar Association has published the most recent issue of the Canadian Competition Law Review (2011 – Vol. 24 No. 1) (formerly the Canadian Competition Record) (see: Canadian Competition Law Review – 2011 – Vol. 24 No. 1).
This issue of the Canadian Competition Law Review includes articles and comments on indirect purchaser class actions, the institutional design of Canadian competition policy, the Competition Tribunal, the U.S. Horizontal Merger Guidelines, the treatment of buying-side agreements under the amended section 45 of the Competition Act and injunctions in misleading advertising cases.
Reuters Canada, Canadian Business, the Wall Street Journal and other media have reported that the Competition Bureau has issued a “no action” letter clearing Rio Tinto’s Cdn. $654 million friendly takeover offer for junior uranium developer Hathor Exploration.
In making the announcement, Rio Tinto said in its press release:
“Rio Tinto yesterday received Canadian Competition Bureau clearance for its offer, made through an indirect wholly-owned Canadian subsidiary, to acquire all the common shares of Hathor Exploration Limited (“Hathor”) for C$4.70 in cash per common share.
The Commissioner of Competition issued a ‘no action letter’ which constitutes compliance with all requirements of the Competition Act (Canada) in relation to Rio Tinto’s offer for Hathor.
Rio Tinto’s recommended offer values Hathor at approximately C$654 million on a fully-diluted basis and represents a premium to the unsolicited revised offer of Cameco Corporation’s of C$4.50 per common share of Hathor made on 14 November.
Hathor’s board of directors unanimously recommends that Hathor shareholders accept and tender their common shares to Rio Tinto’s offer which is open for acceptance until 5:00pm (Toronto time) on 30 November 2011, unless extended or withdrawn in accordance with its terms.”
See: Rio Tinto Receives Canadian Competition Bureau Clearance for its Offer for Hathor Exploration.
“No action letters” are one of two types of merger clearance (the other being Advance Ruling Certificates, or “ARCs”) available under the Competition Act. Unlike an ARC, however, where a no action letter is issued, the Commissioner may challenge the transaction for up to one year post-closing (a period recently shortened from three years as a result of 2009 amendments to the Competition Act).
Rio Tinto’s $4.70 per-share offer for Hathor, which it raised last week, expires November 30th.
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For more about Canadian merger control see:
On November 22, 2011, the Competition Bureau announced that criminal charges had been laid against six companies and five individuals accused of rigging bids for provincial and municipal contracts for sewer services in the Montreal area (see: Competition Bureau Exposes Sewer Services Cartel in Quebec and Backgrounder – Competition Bureau Exposes Sewer Services Cartel in Quebec).
In making the announcement, the Bureau said:
“The evidence gathered by the Bureau reveals that the companies secretly agreed to coordinate their bids to pre-determine the winners of municipal and provincial contracts for the cleaning and maintenance of sewers.
‘This bid-rigging scheme misled officials into believing that tendering processes were competitive,’ said Melanie Aitken, Commissioner of Competition. ‘In reality, those charged had submitted token bids designed to ensure that a pre-determined company would win the contracts. The scheme deliberately evaded requirements created to protect taxpayer dollars in the government procurement process.’”
On November 10, 2011 the C.D. Howe Institute issued a report reviewing the Competition Bureau’s (the “Bureau”) enforcement of the criminal conspiracy offences of the Competition Act, its enforcement in relation to strategic alliances and policies regarding the issuance of binding advisory opinions.
The C.D. Howe Institute’s Competition Policy Council (the “Competition Council”), which held its second meeting on November 3, 2011 and provides “analysis of emerging competition policy issues, including those potentially faced by the federal Competition Bureau”, addressed the following questions:
1. How can competition policy legislation and enforcement discourage truly anti-competitive agreements without discouraging healthy cooperation?
2. What guidance should the Bureau provide to better define when a [competitor-competitor] agreement is likely to be subject to criminal prosecution?
3. Are severe potential criminal sanctions for competitor agreements warranted?
The National Centre for Business Law will be hosting its 5th NCBL Annual General Meeting and Reception with guest speaker Melanie Aitken, Commissioner of Competition on November 30, 2011 at the Four Seasons Hotel, Seasons Room, 791 West Georgia Street in Vancouver from 5:30 – 7:30 p.m.
For more information and registration details see:
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On November 2, 2011, Madam Justice Simpson of the federal Competition Tribunal (the “Tribunal”) granted leave to Realtysellers (“RS”) and The Canadian Real Estate Association (“CREA”) to intervene in the Toronto Real Estate Board (“TREB”) abuse of dominance case.
Following the Tribunal’s decision, CREA’s President Gary Morse said:
“We are pleased that the Tribunal is willing to hear our position in this matter and look forward to contributing to the Tribunal on important issues that will affect not only TREB and its members, but will also have broader implications for other Boards and Associations … The important issues under discussion may lead to a Tribunal Order affecting data sharing over the Internet which directly affects the interests of all CREA members … It is important for us, and our members, to be at the table and part of this discussion.”
CREA and RS both moved for leave to intervene in the TREB abuse of dominance case on October 18, 2011.
Abuse of Dominance
To establish abuse of dominance under the Competition Act, which is one of the Act’s civil “reviewable matters”, the Commissioner of Competition must establish: (i) that a firm (or firms) is dominant (possesses market power in a relevant market), (ii) the firm has engaged in a practice of anti-competitive acts and (iii) the practice has had, is having or is likely to have the effect of preventing or lessening competition substantially.
The Competition Bureau (the “Bureau”) commenced its case against TREB in May 2011, arguing that TREB was using its control of the MLS System to pass rules and policies restricting brokers access to and use of TREB’s MLS System. In particular, the Bureau has taken the position that certain TREB rules regarding the use of its MLS data prevents brokers from using “virtual office websites” (secure, password protected “VOWs” to provide real estate brokerage services to their customers over the Internet).
With respect to the necessary elements to establish abuse of dominance, the Bureau is arguing that TREB is dominant (in the residential real estate services market in the Greater Toronto area), that is has engaged in a practice of anti-competitive acts (rules governing the use of its MLS data) and that its conduct has resulted in a substantial prevention or lessening of competition.
CREA’s and Realtysellers’ Intervenor Applications
The Competition Tribunal Act provides that any person may intervene in Tribunal proceedings with leave from the Tribunal, which has held that applicants for intervenor status must meet the following elements: (i) they are directly affected, (ii) the matter is legitimately within the scope of the Tribunal’s consideration (or sufficiently relevant to its mandate), (iii) the intervenor’s representations are relevant to an issue raised by the Commissioner and (iv) the intervenor will bring a unique or distinct perspective to the proceedings.
CREA sought leave to intervene to deal with, among other things, relevant market definition (product and market definition), the use and competitive impact of VOWs (and other data-sharing vehicles in Canada) and the impacts of potential remedies on CREA and its members (including on its MLS and other trademarks).
Madam Justice Simpson granted CREA leave to intervene with respect to: (i) the use and competitive impact of other (i.e., non-VOW) Internet data-sharing vehicles in Canada, (ii) the appropriate terms of use/conditions to be included in rules to implement non-VOW Internet data-sharing vehicles and (iii) the impact of proposed remedies on CREA and its members (including on its MLS and other trademarks). With respect to process, the Tribunal granted CREA leave to intervene to review discovery transcripts and productions, call two fact or expert witnesses, cross-examine the Commissioner’s witnesses, participate in pre-hearing proceedings and make oral and written submissions.
The Tribunal also granted RS leave to intervene with respect to: (i) the cost savings and operational efficiencies of operating a virtual office (and the savings that can be passed on to consumers), (ii) the impact of TREB’s current rules and policies (including its recent VOW policy) on non-traditional brokerages that want to supply MLS information to consumers through a virtual office and (iii) the proposed order and impact it may have on non-traditional brokerages that want to provide consumers with MLS information through virtual offices.
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For the Tribunal’s order granting leave to RS and CREA see:
For recent media coverage see:
REM: CREA, Realtysellers Both Get Standing at TREB Competition Case, Toronto Sun: CREA to Have its Say at Competition Tribunal, Canada Newswire: CREA Welcomes Decision of Competition Tribunal, Toronto Star: Two Realty Players Join Competition Tribunal Case.
For more about the TREB case see:
CREA Seeks Leave to Intervene in TREB Abuse of Dominance Case, Toronto Real Estate Board Fights Back in Abuse of Dominance Case – Asserts Market Definition and Intellectual Property Rights Arguments, Competition Bureau Files Competition Tribunal Application Against the Toronto Real Estate Board.
For the pleadings in the TREB case see:
Commissioner of Competition v. The Toronto Real Estate Board – Notice of Application, Commissioner of Competition v. The Toronto Real Estate Board – TREB Response, Commissioner of Competition v. The Toronto Real Estate Board – Commissioner’s Reply.
On October 25, 2011, the Competition Bureau published the Commissioner of Competition’s speech given at the 2011 Canadian Bar Association’s Annual Competition Law Conference in Ottawa.
It is fair to say that the Commissioner’s recent speech presented a singular tone across the civil and criminal competition law areas: enhanced enforcement.
Of the Commissioner’s remarks, some of the more interesting points include the Bureau’s increased focus on reviewing non-notifiable mergers (i.e., transactions that do not trigger the notification thresholds under the Competition Act), the statement that the Bureau has begun to revoke markers in some immunity cases where in its view immunity applicants are not complying with its Immunity Program and a subtle suggestion that the Bureau was preparing to bring, but not quite yet in a position to commence, the first conspiracy cases under the amended section 45 (Canada’s new hard core criminal conspiracy offences). The following are some highlights from the Commissioner’s recent speech.
On December 15, 2010 Canada’s new anti-spam legislation received Royal Assent, which will, when it comes into force, be one of the strictest anti-spam regimes in the world:
An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act (the “Anti-spam Act”).
Earlier this Fall, consultations on two sets of draft Regulations concluded and so the new law may come into effect later this Fall or in the Spring of 2012 (see coming into force information below).
On October 5, 2011 the Ottawa Business Journal, Ottawa Citizen and Vancouver Sun reported that Ontario Justice Ann Alder ruled that an Ottawa bid-rigging case in the technology sector can go to trial.
In this case, the Competition Bureau alleged that a number of companies, including TGP Technology, Spearhead Management, The Devon Group, Brainhunter, Nortak Software and Tipacimowin Technology, rigged bids in relation to IT contracts totaling about $67 million issued by the Canada Border Services Agency, Department of Transport and Public Works (see: Competition Bureau Announces Charges Against Companies Accused of Rigging Bids for Government of Canada Contracts and Backgrounder). Justice Ann Alder dismissed charges against several of the companies (Nortak Software and Tipacimowin Technology).
In making its original announcement in February, 2009, the Bureau said:
“The Bureau found evidence indicating that several IT services companies in the National Capital Region secretly coordinated their bids in an illegal scheme to defraud the government by winning and dividing contracts, while blocking out honest competitors.
The Bureau’s investigation found evidence of criminal activity in 10 competitive bidding processes from 2005, for contracts worth approximately $67 million. The contracts related to IT professional services provided to the Canada Border Services Agency, Public Works and Government Services Canada, and Transport Canada.”
We are pleased to announce the forthcoming publication by Carswell this fall of The Competition Law Guide for Associations in Canada jointly authored by Steve Szentesi and Mark Katz.
The Guide, the first book of its kind in Canada, will be a practical and concise summary of Canadian competition law as it applies to trade, professional and other associations. It will include an overview of the major areas of Canadian competition law that apply to associations, including the conspiracy, bid-rigging, abuse of dominance and misleading advertising provisions of the federal Competition Act.
The Guide will also include discussions of some of the specific types of association activities that can raise competition law concerns including membership criteria and discipline, codes of conduct and standard setting, meetings and information exchanges and joint association activities (e.g., joint negotiation and marketing, joint purchasing activities and lobbying and advocacy). A compendium of “best practices” (i.e., do’s and don’ts) will also be provided together with sample guidelines for the conduct of association meetings, document creation and responding to government investigations (principally search and seizures). Basic sample association compliance presentations for associations will also be included.
The Guide is intended to provide a practical resource for trade and professional association executives, their personnel and counsel to better understand Canadian competition law as it applies to association activities and to assist them in anticipating and reducing potential competition law liability.
For more information about this forthcoming book see Carswell’s product catalogue:
The Competition Law Guide for Trade Associations in Canada
Carswell will also be offering an online webinar in November in conjunction with the publication of the Guide. For more information see:
West LegalEdcenter – A Guide to Canadian Competition Law for Trade and other Associations
On October 3, 2011, the Competition Bureau announced that a deceptive telemarketer has been sentenced to two years in prison in relation to a deceptive telemarketing scheme involving the sale of business directories (see: Deceptive Telemarketer Receives a 2-year Prison Sentence).
This is the most recently announced telemarketing case by the Bureau, which shows that the criminal deceptive telemarketing and misleading advertising provisions of the Competition Act remain top enforcement priorities the Bureau. The case is also a recent illustration that, while relatively uncommon for competition law offences in Canada, the Bureau will not hesitate to seek prison sentences for what in its view are clearly intentional or fraudulent marketing law offences.
The Bureau has brought and sought penalties in a number of deceptive telemarketing cases in the past several years, many of which have involved the alleged cross-border deceptive marketing of business directories (see for example: Criminal Charges Laid in a Competition Bureau Telemarketing Case, Five Alberta Individuals Sentenced in Deceptive Telemarketing Scheme, Competition Bureau Sues to Shut Down Business Directory Scam, Competition Bureau Warns Against Deceptive Business Directories and Directors of Infotel Charged With Deceptive Telemarketing).
On September 2, 2011, the Competition Bureau released its “ex-post assessment” of its 2007 Self-Regulated Professions Study (Self-regulated professions – Balancing competition and regulation (December, 2007)).
According to the Bureau, its new Study “surveys and assesses developments that have taken place relating to recommendations made in [its] 2007 Study” and “provides an overview of the progress made since 2007” to the earlier recommendations made by the Bureau.
In 2007, the Bureau released a Study on the rules and regulations governing five Canadian professions (real estate agents, pharmacists, lawyers, accountants and optometrists), intended to study the impact (or lack of it in some cases) of competition on the self-regulated professions in Canada.
The Bureau’s 2007 Study examined six aspects of self-regulation – in particular, restrictions on entering a profession, mobility, business structure, scope of services/practice, advertising and pricing and compensation – and made 53 recommendations to the various professions in an effort to try and enhance competition in those professions.
On August 31, 2011, The Canadian Real Estate Association requested leave to intervene in the Competition Bureau’s abuse of dominance case against The Toronto Real Estate Board to support TREB.
The Competition Tribunal Act allows any person affected by Tribunal proceedings to intervene in proceedings with leave from the Tribunal.
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)).
OUR BOOKS
The Competition Law Guide for Trade Associations in Canada is a practical and concise summary of Canadian competition law as it applies to trade, professional and other associations.
OUR COURSES
Competition Law and REALTORS®: What You Say and Do Matters was designed by ACRE with the assistance of CREA to help Canadian REALTORS® understand and comply with Canadian competition law.
This course is available
to members of Canadian
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For more information see ACRE