Archive for the 'Competition Law' Category
On December 1, 2011, the C.D. Howe Institute issued a report on the Investment Canada Act entitled Reforming the Investment Canada Act: Walk More Softly, Carry a Bigger Stick, authored by Philippe Bergevin and Daniel Schwanen.
Earlier today the Supreme Court of Canada, per Justices LeBel, Fish and Cromwell, granted leave to appeal in the Pro-Sys Consultants Ltd. v. Microsoft Corporation and Sun-Rype Products Ltd. v. Archer Daniels Midland Company cases.
These cases relate to conflicting indirect purchaser class action certification decisions in British Columbia (two companion decisions of the British Columbia Court of Appeal) and Quebec (a recent decision of the Quebec Court of Appeal).
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.”
In a short but interesting recent note, Madam Justice Sandra J. Simpson has proposed changes be made to the federal Competition Tribunal. In an article entitled “The Competition Tribunal 2003-2011 and Beyond”, the Federal Court judge, who sits on the Competition Tribunal, recommendeds that the Tribunal’s jurisdiction should be expanded to include the following:
1. Single damages for parties in private actions;
2. Private actions for abuse of dominance with leave (to which Justice Simpson adds that the Tribunal has exercised its power to grant leave to private parties responsibly);
3. A reference power for parties in negotiations with the Commissioner; and
4. The approval of consent agreements by a judge alone – with written comments from but no intervention by affected parties (which, in Justice Simpson’s view, will “ensure that the Commissioner has a defensible theory of harm to support his or her settlements”).
Earlier this month, the Quebec Court of Appeal unanimously overturned the earlier 2008 Quebec Superior Court decision in Option Consommateurs v. Infineon Technologies AG, which had denied a motion to commence class action proceedings.
The decision in this case, which follows U.S. proceedings and guilty pleas in relation to a price-fixing conspiracy for the supply of dynamic random access memory (“DRAM”), is significant in expressly allowing indirect class action plaintiffs to proceed despite two earlier British Columbia Court of Appeal decisions that created a de facto passing-on defence (see: British Columbia Court of Appeal Allows Microsoft Appeal in Pro-Sys v. Microsoft – Creates de facto Passing-on Defence). (for the earlier BC judgments in Pro-Sys and Sun-Rype see: Pro-Sys Consultants Ltd. v. Microsoft Corporation and Sun-Rype Products v. Archer Daniels Midland Company).
In these two earlier British Columbia decisions, the Court of Appeal set aside the plaintiffs’ earlier certification decisions largely based on the risk that allowing indirect purchaser plaintiffs to proceed may lead to double recovery. In this regard, Mr. Justice Lowry held:
“… in the absence of the passing-on defence, a defendant would be liable for both the whole of the charge passed on (liability to the direct purchasers) and for all or any portion of the charge passed on (liability to the indirect purchasers) … [that] would result in double recovery … which our law does not permit.”
The Canadian Institute will be holding an Advertising and Marketing Law Conference on Wednesday, January 25-26, 2012 at the Four Seasons Hotel, Toronto, Ontario.
From the Canadian Institute:
“We have obtained the highest quality speakers to present you with cutting edge analysis and practical guidance on the latest issues in this constantly evolving area of law. In fact, leaders in this field have been relying on our conference year after year to hone their skills, so join us at The Canadian Institute’s 18th Annual Advertising & Marketing Law program and be equipped with the tools necessary to be completely confident in your practice. Keynote Address: Melanie Aitken, Commissioner of Competition, Competition Bureau Canada Recent Enforcement Initiatives and Future Directions of the Competition Bureau. In the past year we have already seen, and will continue to see significant developments. You will learn about them all through our stimulating and interactive mix of sessions, including:
The latest need to know enforcement trends and priorities of the Competition Bureau
An in-depth analysis of the Anti-Spam legislation – in anticipation of it being proclaimed into force
The noteworthy differences between our Anti-Spam legislation and the U.S. Can-Spam Act
A practical session on drafting disclaimers on all forms of media
The most up-to-date tips on running contests
Risk mitigation for all emerging and recently revived marketing & advertising techniques
The latest issues and trends from the U.S. and how they may affect you”
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For more information see:
The Canadian Institute – Advertising and Marketing Law Conference
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.
On November 24, 2011, the Supreme Court of Canada denied leave in United States Steel Corporation et al. v. Attorney General of Canada (FC) (Civil) (By Leave) (34389). See: Supreme Court of Canada Judgements. See also: National Post – Supreme Court Won’t Hear U.S. Steel Appeal.
To appeal a decision of a court of appeal in a civil case to the Supreme Court, the party wishing to appeal must first obtain leave (i.e., permission) to do so. Under the Supreme Court Act, an application for leave to appeal may be granted if the Supreme Court finds that the case: (i) raises an issue of public importance and (ii) should be decided by the Supreme Court. Any case must raise an issue that goes beyond the immediate interests of the parties.
The Supreme Court does not issue reasons for its decisions to allow or dismiss applications for leave to appeal. Judgments on applications for leave to appeal are also generally final (under the Supreme Court of Canada Rules, an application for leave to appeal will not be reconsidered unless there are exceedingly rare circumstances in the case that warrant consideration).
This U.S. Steel case relates to the federal government’s lawsuit against U.S. Steel in relation to the performance of undertakings U.S. Steel provided in its 2007 acquisition of Hamilton-based Stelco Inc. The Federal Court had previously allowed the government’s lawsuit to proceed.
Where an investor fails to comply with the Investment Canada Act (e.g., fails to file an application for review or notification, fails to comply with undertakings or completes a reviewable investment without the requisite approval) a number of penalties may be imposed. These include divestiture of assets, the revocation (or suspension) of voting rights and financial penalties of up to Cdn. $10,000 per day that an investor is in contravention of the Investment Canada Act (being sought by the government in this case).
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For the Supreme Court of Canada’s leave decision see:
Supreme Court of Canada Judgements
For more about the Investment Canada Act see:
We are pleased to announce the launch of our new Canadian advertising and marketing law blog: Canadian Advertising & Marketing Law.
Our new blog will include news and developments in Canadian advertising and marketing law, key resources and links and overviews of advertising law, the new anti-spam legislation (Bill C-28), comparative advertising, promotional contest law, misleading advertising, packaging and labeling laws and telemarketing.
The Antitrust Law Section of the American Bar Association will be offering an online webinar on Remedies in Monopolization Cases on Wednesday, December 7, 2011.
From the ABA:
“The program will explore the thorny question of remedies for single firm anticompetitive conduct, including the structural, behavioral and damages remedies, from the EU and US perspectives. Our panelists will also explore the efficacy of remedies in high tech and other innovative industries. In addition, the program will also explore the very difficult issue of remedies in cases involving pricing conduct, intellectual property rights, and refusals to deal.”
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For more information see:
American Bar Association – Unilateral Conduct Committee – Remedies in Monopolization 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.”
On October 6, 2011 the Competition Bureau issued its updated Merger Enforcement Guidelines.
The Bureau’s new MEGs, which set out its approach to the substantive review of mergers in Canada, are the first update to the MEGs since 2004 and the result of publication consultations across Canada in 2010 and 2011.
The Bureau has also recently issued a number of new (or updated existing) merger related guidelines, policies and reports. These include: Merger Review Performance Report (2010), Competition Bureau Merger Remedies Study Summary, Competition Bureau Fees and Service Standards Handbook for Mergers and Merger-Related Matters, Procedures Guide for Notifiable Transactions and Advance Ruling Certificates Under the Competition Act, Hostile Transactions Interpretation Guidelines, Pre-Merger Notification Interpretation Guidelines and Merger Review Process Guidelines.
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For the Bureau’s news release issued with the new MEGs see:
Competition Bureau Issues Final Merger Enforcement Guidelines
For more information about Canadian merger control see:
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).
The British Columbia Real Estate Association will be hosting its 2011 Instructor Development Workshop in Whistler from September 22nd to 25th 2011, for instructors of REALTORS in British Columbia.
Steve Szentesi will be facilitating a competition law workshop (amendments to the Competition Act and developments in the first two years in force) on Sunday, September 25th.
For more information about the IDW workshop, event schedule and speakers see BCREA’s website:
In a significant recent decision by the federal Competition Tribunal, the Tribunal granted leave to the Used Car Dealers Association of Ontario (the “UCDA”) to make a section 75 refusal to deal application relating to a refusal by the Insurance Bureau of Canada (the “IBC”) to supply data to it for one of its products for its members.
This recent case, reasons for which were issued on September 9, 2011, is significant, in that the UCDA was seeking leave to make its refusal to deal application in light of a longstanding adverse decision – the Warner music case.
(Leave from the Tribunal is a prerequisite to making refusal to deal applications to the Competition Tribunal, as well as private applications under the price maintenance (section 76) and exclusive dealing/tied selling/market restriction sections (under section 77).)
In its earlier Warner decision, the Tribunal held that licenses to use and reproduce intellectual property (music in Warner) was not a “product” for section 75 of the Competition Act and also that a license could not be in “ample supply” (two of a number of requirements under section 75), given that a license holder has a right under intellectual property legislation (e.g., the Copyright Act) to decide whether or not to license its IP to third parties.
In light of Warner, it has generally been thought that refusals to license intellectual property could not be the subject of refusal to deal applications under section 75 (or at minimum, that arguments would need to be made as to why Warner should not apply to a particular case, and that this could reduce the likelihood of success of section 75 applications in the context of intellectual property refusals to deal).
On September 7, 2011, the federal Competition Bureau announced that it had reached a settlement with Nivea’s Canadian distributor, Beiersdorf Canada Inc., relating to allegedly false or misleading performance claims in its advertising.
In particular, the Bureau took issue with claims that suggested that the use of skin cream could lead to weight loss. Under the terms of the consent agreement negotiated with the Bureau, Beiersdorf has agreed to pay an “administrative monetary penalty” or “AMP” of Cdn. $300,000 (“AMPs” are essentially civil fines), refund Canadian customers and remove its products from Canadian shelves.
In making its announcement, the Bureau said:
“A Bureau investigation determined that Beiersdorf made a number of deceptive claims about its “My Silhouette” product. The misleading representations were displayed on the package and on Nivea’s Web site. The representations stated that:
use of the product could lead to a “reduction of up to 3 centimetres on targeted body parts, such as thighs, hips, waist and stomach”;
My Silhouette “contains a highly effective natural Bio-Slim Complex for a slimmer looking and more defined silhouette”; and
My Silhouette “combines high performance active ingredients for a dual effect of slimming & reshaping.”
Beiersdorf’s representations also created the misleading impression that use of the product could make the skin more toned and elastic.
““Beiersdorf misled consumers by claiming a person could slim down by simply applying a skin cream,”” said Melanie Aitken, Commissioner of Competition. ““Unfortunately, consumers who purchased My Silhouette learned the hard way that there was no such easy fix.””
Under the terms of the consent agreement registered with the Competition Tribunal today, Beiersdorf is also required to publish a corrective notice on Nivea’s Canadian Web site and in major Canadian newspapers, and to pay $80,000 to cover costs associated with the Bureau’s investigation.”
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)).
On August 30, 2011, the Competition Bureau announced that five individuals in Alberta were convicted and sentenced of deceptive telemarketing under the Competition Act.
In making the announcement, the Bureau stated:
“The individuals have been convicted of deceptive telemarketing under the Competition Act and of committing fraud over $5000 under the Criminal Code of Canada. The names of the individuals convicted and their respective sentences are:
Garther Cheung and Sukhraj Singh Chana, co-founders of the company, were each sentenced to one year for each of three counts of deceptive telemarketing and to two years in a federal penitentiary for committing fraud over $5,000, all time to be served concurrently.
Pritpal Chana and Ranjit Sangha, both managers of the company, were each sentenced to 16 months for each of three counts of deceptive telemarketing and 16 months for committing fraud over $5,000, all time to be served concurrently. The first eight months will be served as house arrest and the remaining eight months on probation.
Andrea Kyweriga, also a manager, was given a suspended sentence and placed on two years probation after being convicted of two counts of deceptive telemarketing and one count of fraud over $5000.
The five individuals are also prohibited from doing any act or thing that would be directed toward the deceptive telemarketing offence being committed or repeated for the next 10 years.
A sixth individual, Sarah Schaefer, pleaded guilty in 2007 and received a $15,000 fine.”
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
real estate boards.
For more information see ACRE