In Pro-Sys, a majority of the British Columbia Court of Appeal set aside an earlier Supreme Court of British Columbia decision granting certification and dismissed the action on the basis that the representative plaintiffs, as indirect purchasers, had no cause of action maintainable in law.

In Sun-Rype, the British Columbia Court of Appeal similarly set aside an earlier Supreme Court of British Columbia decision granting certification for indirect purchaser plaintiffs, holding that they had no cause of action (and remitted the application to the trial court for consideration with respect to the direct purchaser plaintiffs).

These companion decisions by the British Columbia Court of Appeal were in contrast and conflict to a recent Quebec Court of Appeal decision in Option Consommateurs v. Infineon Technologies AG, which unanimously overturned a 2008 Quebec Superior Court decision denying a motion to commence indirect purchaser class action proceedings.

Presumably based on the uncertainty of indirect purchasers’ ability to commence price-fixing class actions in Canada (the Supreme Court does not issue reasons in leave applications), and the conflicting existing case law including these recent British Columbia and Quebec appellate decisions, the Supreme Court granted leave to appeal on December 1, 2011 (see: Canadian Supreme Court Grants Leave in Pro-Sys/Microsoft and Sun-Rype Indirect Purchaser Competition/Antitrust Class Actions).

After some years of unsettled law and conflicting decisions, it looks as though after June plaintiff and defense counsel, and their clients, will receive some long-awaited certainty regarding the ability of indirect purchasers to commence price-fixing class actions and the status of the passing-on defense in Canada.

___________________

For more see: Canadian Supreme Court Grants Leave in Pro-Sys/Microsoft and Sun-Rype Indirect Purchaser Competition/Antitrust Class Actions, Quebec Court of Appeal Rejects BC Court of Appeal Passing-on Defence Decisions in Pro-Sys and Sun-Rype, British Columbia Court of Appeal Allows Microsoft Appeal in Pro-Sys v. Microsoft – Creates de facto Passing-On Defence

For more about our firm and our practices see:

 Hakemi & Company

Conservative Justice and Public Safety Ministers Rob Nicholson and Vic Toews are asking Senators to “expeditiously” approve the Bill.

Bill C-10, which completed second reading in the Senate in December, would, among other things, eliminate conditional sentences of two years or less (i.e., sentences served in the community rather than a correctional facility) from being ordered by courts for violation of two of the core criminal offences under the Competition Act: criminal conspiracy agreements (section 45) and bid-rigging agreements (section 47).

This would be achieved by amending section 742.1 of the Criminal Code to restrict the availability of conditional sentences for all offences for which the maximum term of imprisonment is 14 years or life (and for specified offences, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years).

Both sections 45 (criminal conspiracy agreements, including price-fixing and market division/allocation agreements between competitors) and 47 (bid-rigging) of the Competition Act are indictable offences, subject to maximum terms of imprisonment of 14 years (increased as a result of recent amendments to the Competition Act in 2009 and 2010).

Given that the Competition Act has been amended to significantly increase the penalties for criminal conspiracy offences (and lower the enforcement bar by removing the former competitive effects test – see: Competition Act amendments), Bill C-10 will, if enacted, further increase the potential risk for individuals violating these key criminal offences under the Act.

____________________

For more about the criminal conspiracy rules in Canada and our services see:

Conspiracy (Cartels)

Hakemi & Company

The National Competition Law Section of the Canadian Bar Association will be holding a teleconference on February 29, 2012 entitled: “Criminal Conspiracy or Legitimate Competitor Collaboration?  Tips for In-House Counsel”

From the Canadian Bar Association:

“Authorities have recently noted their first conviction under Canada’s amended conspiracy law, commenting: “[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.” 

In-house counsel practising competition law are often asked to evaluate the competition law risks associated with activities such as joint selling initiatives, joint ventures, buying groups, participation in trade associations, and merger transactions.  As such, in-house counsel are an organization’s first line of defence to identify potential illegal arrangements to fix prices, allocate markets or restrict output, that create risks of criminal investigation and prosecution; and that can result in significant fines, imprisonment, damage to an organization’s reputation, and civil damage claims.

The line between criminal conspiracies and pro-competitive strategic alliances among competitors, however, can at times be difficult to detect. It is critical that in-house counsel have the tools necessary to distinguish benign or pro-competitive activity from potentially criminal conduct.”

____________________

For more about this teleconference see:

Criminal Conspiracy or Legitimate Competitor Collaboration?  Tips for In-House Counsel

For more about Canada’s amended conspiracy laws and our compliance services see:

Conspiracy (Cartels)

Competition Law Compliance Programs

Hakemi & Company

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).

This case relates to an action commenced by Realtysellers against CREA, TREB and their directors and officers in relation to alleged anti-competitive MLS® access restrictions – or, as the Court stated:

“Essentially, the plaintiffs claim that the Toronto Real Estate Board (TREB) and its officers and directors … together with the Canadian Real Estate Association (CREA) and its officers and directors … breached the terms of an earlier settlement agreement, violated [the conspiracy provisions] of the Competition Act … unlawfully conspired together to injure the plaintiffs, and wrongfully interfered with the plaintiffs’ economic and contractual relations.”

and

“As to the specific nature of the plaintiffs’ allegations, the Fresh as Amended Statement of Claim alleges that, between 2005 and 2007, the 22 individual CREA defendants, in their personal capacity as real estate brokers, and for the purpose of harming the plaintiffs and removing them and their new business as a competitive threat, ‘acted and agreed unlawfully, maliciously, without justification and outside the scope of his or her authority within CREA’ to influence CREA, TREB, the other defendants and other real estate boards ‘to drive the plaintiffs out of the resale brokerage business’ by causing CREA to implement ‘new offer negotiation rules’ that all CREA member boards across Canada would have to follow.”

In particular, Realtysellers is arguing that following an earlier settlement, TREB in consultation with CREA enacted new MLS® rules that required listing brokers to be involved in the offer negotiation process in residential real estate transactions, which prevented flat fee service offerings by Realtysellers, eliminated its access to the MLS® system and forced them to suspend their business operations.

Realtysellers is pleading a number of statutory and common law causes of action including conspiracy under section 45 of the Competition Act, common law conspiracy, breach of the earlier settlement agreement in this matter, inducing breach of contract and interference with economic relations.

In dismissing the defendants’ motion to dismiss Realtysellers’ claim, Mr. Justice Campbell found, among other things, that Realtysellers claim adequately discloses causes of action for breach of contract, both types of common law conspiracy pleaded and conspiracy under section 45 of the Competition Act.

The Court also made a number of interesting findings and observations regarding the legal test for parties seeking to strike a claim, when directors and officers may be held personally liable and, perhaps most interestingly, the evidentiary burden in conspiracy cases and role of circumstantial evidence in establishing a conspiracy:

Legal test to strike a claim:

“The combined application of these principles creates a ‘stringent’ legal test for defendants moving to strike out a statement of claim.”

When directors and officers may be held to be personally liable:

“As the Court of Appeal for Ontario confirmed in Piedra v. Copper Mesa Mining Corp. … in the absence of allegations of fraud, deceit, dishonesty, or want of authority on the part of the officers, directors, or employees of the organization, such individuals are protected from personal liability ‘unless it can be shown that their actions are themselves tortious’ or ‘exhibit a separate identity or interest from that of the company’ so as to render the impugned conduct ‘their own’ … In the present case, however, the plaintiffs have clearly alleged that the individual defendants acted unlawfully and maliciously against them, without justification, entirely outside the scope of their lawful authority as officers and/or directors of TREB and/or CREA and for the advancement of their own personal and business interests.”

Evidentiary burden in conspiracy cases and role of circumstantial evidence in establishing a conspiracy:

“Accordingly, it is not plain and obvious that the plaintiffs’ claim fails to disclose a reasonable cause of action regarding the tort of conspiracy.  Indeed, in my view the plaintiffs have alleged that the defendants engaged in a classic type of conspiracy, namely, combining together to drive a business competitor and their novel business model out of the marketplace.

While the plaintiffs candidly admit a lack of detailed knowledge as to all of the factual nuances of the conspiracy, this is hardly surprising given the nature of the allegation.  As Cumming J. aptly stated, when faced with similar circumstances in North York Branson Hospital v. Praxair Canada Inc., [1998] O.J. No. 5993 (S.C.J.), at para. 22:

‘In truth, the very nature of a claim of conspiracy is that the tort resists detailed particularization at early stages.  The relevant evidence will likely be in the hands and minds of the alleged conspirators.  Part of the character of a conspiracy is the secrecy and the withholding of information from alleged victims.  The existence of an underlying agreement bringing the conspirators together, proof of which is a requirement borne by a plaintiff, often must be proven by indirect or circumstantial evidence.  A conspiracy is more likely to be proven by evidence of overt acts and statement by the conspirators from which the prior agreement can be logically inferred.  Such details would not usually be available to a plaintiff until discoveries.  These considerations and the general theme of Hunt, instructing courts not to shy away from difficult litigation, also militate against holding pleadings in civil conspiracy cases to an extraordinary standard.’”

____________________

For more information about our litigation and regulatory law services see our firm’s home page:

Hakemi & Company

From Gibson Dunn:

“The Department of Justice obtained more than $1 billion in FY 2011 from criminal antitrust offenders, the second-highest amount in its history.  The total payments consist of an estimated $523 million in criminal fines and more than $500 million in restitution, penalties, and disgorgement paid to state and federal agencies.  This staggering amount represents an increase of more than 78% from FY 2010 and sends a clear message to the corporate world that DOJ’s zealous pursuit of large fines for collusive conduct continues unabated.

Another important measure of success for the Department of Justice, Antitrust Division also significantly advanced in FY 2011; the number of criminal cases filed increased 50% to 90 cases, which included 27 corporations and 82 individuals–each category significantly higher than in FY 2010.

Despite these achievements for the Antitrust Division, other metrics revealed significant year-over-year declines in FY 2011.  Most notably, several statistics relating to incarceration of antitrust defendants reached multi-year lows: the number of individuals sentenced to prison decreased 28% to just 21 defendants, the length of the average prison sentence fell 44% to 17 months, and the total prison time imposed on defendants dropped 60% to 10,544 days.  …

Given the Antitrust Division’s numerous ongoing investigations–a number of which involve large, complex, international cartel matters that have not yet been announced publicly–we expect 2012 to be another banner year in criminal antitrust enforcement. …”

____________________

For the complete publication see:

2011 Year-End Criminal Antitrust Update

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:

New RCMP Commissioner Announces New “Tough Line” on White-collar Crime

The new head of the RCMP, Bob Paulson, who was named new RCMP Commissioner in November, has vowed to take a new “tough line on white-collar crime” (See: New RCMP head takes tough line on white-collar crime), particularly in relation to major fraud and securities law investigations.

This announcement follows a recent law enforcement trend by the Conservative government generally and key Canadian regulatory officials.  For example, an extensive federal omnibus crime bill was recently passed that will, among other things, significantly restrict conditional sentences (e.g., sentences served in the community for criminal offences) including for some criminal offences under the Competition Act.

Supreme Court of Canada Denies Leave in Refusal to Deal Case: Nadeau Poultry Farm v. Groupe Westco Inc.

On December 22, 2011, the Supreme Court of Canada, per Justices McLachlin, Rothstein and Moldaver, denied leave to appeal in Nadeau Poultry Farm Limited v. Groupe Westco Inc. (see: Supreme Court of Canada denies leave in Nadeau Poultry Farm v. Groupe Westco Inc. (December 22 2011)).  The applicant in this section 75 refusal to deal case under the Competition Act, Nadeau Poultry Farm, was seeking leave to appeal an earlier Federal Court of Appeal decision that affirmed a Competition Tribunal decision dismissing its application in 2009 (see: Federal Court of Appeal dismisses appeal in Nadeau Poultry Farm Ltd. v. Groupe Westco Inc.).

Federal Government Passes Omnibus Crime Bill (Bill C-10) – Eliminates Conditional Sentences for Cartel (Conspiracy) and Bid-rigging Offences

On December 5, 2011, a federal omnibus crime bill (Bill C-10) was passed that will, among other things, eliminate conditional sentences of two years or less from being ordered by courts for violation of two of the core criminal offences under the Competition Act: criminal conspiracy agreements (section 45) and bid-rigging (section 47).

Privacy Commissioner Issues New Online Behavioural Advertising (Tracking) Guidelines

On December 6, 2011, the federal Privacy Commissioner issued new online tracking guidelines for advertisers which, among other things, restrict the tracking of children and tracking technologies without an opt-out mechanism.

Federal Government Raises the Possibility of Amending Canada’s Foreign Investment Rules – Again

Bloomberg reported that the federal Minister of Industry has again raised the prospect of amending Canada’s Investment Canada Act in remarks made in New York (see: Canada Open to Changing Foreign-Takeover Law, Paradis Says).  The Industry Minister’s comments closely follow a recent C.D. Howe Institute report calling for fundamental changes to Canada’s foreign investment rules to stimulate foreign direct investment in Canada, including a change to the overarching test for foreign investment approval (replacing the current “net benefit to Canada” test with a national interest test) (see: New Publications – C.D. Howe Institute Report – Reforming the Investment Canada Act: Walk More Softly, Carry a Bigger Stick).

Canadian Supreme Court Grants Leave in Pro-Sys/Microsoft and Sun-Rype Indirect Purchaser Competition/Antitrust Class Actions

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 (companion decisions of the British Columbia Court of Appeal) and Quebec (a recent decision of the Quebec Court of Appeal) (See: Quebec Court of Appeal rejects B.C. Court of Appeal passing-on defence decisions in Pro-Sys and Sun-Rype and British Columbia Court of Appeal allows Microsoft appeal in Pro-Sys v. Microsoft – creates de facto passing-on defence).

Commissioner of Competition Addresses Current Enforcement Priorities in Two Wide-ranging Talks

The Commissioner of Competition, Melanie Aitken, addressed current enforcement priorities in two engaging and wide-ranging talks recently in Vancouver: 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.

Competition Bureau Has “Serious Concerns” About Potential Competitive Effects of TMX/Maple Transactions

The Bureau recently announced that it had “serious concerns” about the Maple Group’s bid to acquire the TMX Group:

“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.”

(TMX News Release, November 29, 2011)

Madam Justice Simpson Proposes Reforms to the Competition Tribunal

In a short but interesting recent note, Madam Justice Sandra J. Simpson has proposed that changes be made to the federal Competition Tribunal, including wider powers for the Tribunal to decide references and award damages for abuse of dominance (monopolization).

Quebec Court of Appeal rejects BC Court of Appeal passing-on defence decisions in Pro-Sys and Sun-Rype

The Quebec Court of Appeal unanimously overturned the earlier 2008 Quebec Superior Court decision in Option Consommateurs v. Infineon Technologies AG, (the ongoing indirect purchaser “DRAMs” case) which had earlier denied a motion to commence class action proceedings.

Supreme Court of Canada Denies Leave in U.S. Steel Investment Canada Case

On November 24, 2011, the Supreme Court of Canada denied leave in United States Steel Corporation et al. v. Attorney General of Canada. See: Supreme Court of Canada Judgements. See also: National Post – Supreme Court Won’t Hear U.S. Steel Appeal.  This landmark Investment Canada Act dispute, between the Canadian Government attempting to enforce undertakings provided by U.S. Steel, has since been settled.

Competition Bureau Announces Quebec Sewer Services Bid-rigging Cartel

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 Montreal (see: Competition Bureau Exposes Sewer Services Cartel in Quebec and Backgrounder – Competition Bureau Exposes Sewer Services Cartel in Quebec).  While the Bureau has yet to bring a section 45 conspiracy case under the amended conspiracy provisions of the Competition Act, it has been very active in bringing bid-rigging cases under section 47 of the Act.

C.D. Howe Institute Issues Report on Competition Bureau Enforcement and Strategic Alliances

On November 10, 2011, the C.D. Howe Institute issued a report reviewing the Competition Bureau’s enforcement of the criminal conspiracy offences of the Competition Act, enforcement efforts in relation to strategic alliances and policies regarding the issuance of binding advisory opinions.

Competition Tribunal Grants CREA Leave to Intervene in TREB Abuse of Dominance Case

On November 2, 2011, Madam Justice Simpson of the federal Competition Tribunal granted leave to Realtysellers and The Canadian Real Estate Association to intervene in the Bureau’s abuse of dominance (monopoly) case against The Toronto Real Estate Board.

CRTC and 12 International Enforcement Agencies Form International Do Not Call Network

The federal Canadian Radio-television and Telecommunications Commission announced that, together with the Australian Communications and Media Authority, it has assembled 12 international enforcement agencies to form an International Do Not Call Network.  See: CRTC announces creation of international network to facilitate cooperation on telemarketing enforcement.

Commissioner of Competition Speech Highlights Enhanced Competition Bureau Enforcement

On October 25, 2011, the Competition Bureau published the Commissioner’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: continued enhanced enforcement.

Ottawa Bid-rigging Case to Go to Trial

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).  Charges were also dismissed against several companies.

Competition Bureau Issues Updated Merger Enforcement Guidelines

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 public consultations in 2010 and 2011.

Telemarketer Receives Two-Year Prison Sentence

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 relating to the sale of business directories (see: Deceptive Telemarketer Receives a 2-year Prison Sentence).

Competition Tribunal Grants Leave in Refusal to Supply Data Case

In a significant recent decision by the Competition Tribunal, the Tribunal granted leave to the Used Car Dealers Association of Ontario to make a section 75 refusal to deal application relating to a refusal by the Insurance Bureau of Canada to supply data to the UCDA.  This recent case, reasons for which were issued on September 9, 2011, is significant, in that the UCDA was seeking leave to make its application in light of a longstanding adverse decision – the Warner music case (which has stood as a barrier to invoking section 75 in relation to refusals to licence intellectual property).

Competition Bureau Negotiates Settlement with Canadian Distributor of Nivea Products over Allegedly Misleading Performance Claims

On September 7, 2011, the 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” (essentially a civil fine) of Cdn. $300,000, refund Canadian customers and remove its products from Canadian shelves.

Competition Bureau Revisits its Self-regulated Professions Study After Four Years

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.

Alberta Telemarketers Sentenced to Jail Time for Cross-border Deceptive Telemarketing Scheme

On August 30, 2011, the Competition Bureau announced that five individuals in Alberta were convicted and sentenced of deceptive telemarketing under the Competition Act.

Competition Bureau Issues New Merger Remedies Study

On August 11, 2011, the Competition Bureau issued a Merger Remedies Study, summarizing its review of the effectiveness of merger remedies negotiated in 23 Canadian merger cases between 1995 and 2005.  According to the Bureau, the results of its study will be used to revise its Information Bulletin on Merger Remedies in Canada first issued in 2006 (see: Information Bulletin on Merger Remedies in Canada) and its companion consent agreement outline template.

Ontario Used Car Dealers Association Attempts to Go Around Landmark Warner Decision in Data Refusal to Supply Case

In a very interesting refusal to supply case currently before the Competition Tribunal, the Used Car Dealers Association of Ontario sought leave from the Competition Tribunal for the re-supply by the Insurance Bureau of Canada of data used in one of the UCDA’s information products for members.

Montreal Company Pleads Guilty in Bid-rigging Case

On July 19^th 2011, the Competition Bureau announced that a Montreal company, Les Entreprises Promécanic Ltée, pleaded guilty to three charges of bid-rigging and was fined $425,000 for its alleged role in rigging bids in relation to residential highrise building ventilation contracts in Montreal.  According to the Bureau, the Montreal company admitted that it was involved in coordinating with competitors to pre-determine the outcome of bids. Interestingly, this case also included an internal compensation arrangement between the parties to the bid-rigging arrangement to ensure that contracts were awarded to the pre-arranged company.

The Competition Bureau’s Application to Block the Air Canada/United Continental Joint Venture – A Few Interesting Aspects

On June 27th 2011, the Competition Bureau announced that it would seek to block a proposed joint venture between Air Canada and United Continental which, according to the Bureau, would “monopolize ten important Canada/United States routes and substantially reduce competition on nine additional routes.”  This case is one of two contested merger cases recently brought by the Bureau, the first in six years, and will, among other things, test the new civil agreement provision of the Competition Act (section 90.1).

Bell Canada Agrees to Pay $10 Million Fine in Misleading Advertising Case

On June 28th, the Competition Bureau announced that Bell Canada has agreed to stop making allegedly misleading claims relating to the prices for its services and to pay an administrative monetary penalty or “AMP” (essentially a civil fine) of $10 million, the maximum penalty for misleading advertising under the Competition Act.

Maple Group Launches Cdn. $3.7 Billion Hostile Bid for TMX Group Inc.

On June 13, 2011, the Maple Group Acquisition Corp., a consortium of 13 Canadian financial institutions, launched a Cdn. $3.7 billion hostile bid to acquire 70% of the TMX Group Inc. for $48 per share.

Two More Individuals Plead Guilty in Quebec Price-fixing Case

On June 10, 2011, the Competition Bureau announced that two more individuals pleaded guilty in the Quebec gasoline price-fixing case to fix the price of gasoline at the pump in Quebec regional markets.

U.S. Federal Trade Commission Brings $450 Million Internet Fraud Case Against Alberta Online Operator

The U.S. Federal Trade Commission announced that it has filed a $450 million internet fraud civil suit against an Alberta online operator.

Competition Bureau Issues No Action Letter in TMX/LSE Deal

The Wall Street Journal reported that the Competition Bureau issued a no action letter in the proposed TMX Group Inc. / London Stock Exchange Group plc transaction.

Further Guilty Plea in Quebec Gasoline Price-fixing Cartel

The Competition Bureau announced that a further individual pleaded guilty and was fined in the Quebec gas price-fixing cartel.  In making the announcement, the Bureau said that Micheline Lapointe-Cabana, owner of a service station in Magog, Quebec operated under the Petro-Canada banner, was sentenced to personally pay a fine of $20,000.

Competition Bureau Files Abuse of Dominance Case Against the Toronto Real Estate Board

On May 27, 2011, the Competition Bureau commenced an abuse of dominance case against The Toronto Real Estate Board before the Competition Tribunal.

Competition Bureau Issues New Fee and Service Standards Handbook for Written Opinions

On May 18, 2011, the Competition Bureau issued its new Fee and Service Standards Handbook for Written Opinions to reflect the significant amendments to the Competition Act that came into force in 2009 and 2010 (see: Competition Bureau Updates Fee and Service Standards Handbook for Written Opinions).

Customer Allocation Conspiracy in the Refrigeration and Food Service Equipment Industry

The Competition Bureau announced that Kason Industries Inc. plead guilty for participating in a customer allocation conspiracy and was fined $250,000 by the Federal Court of Canada.

British Columbia Court of Appeal Allows Microsoft Appeal in Pro-Sys v. Microsoft

On April 15, 2011, the British Columbia Court of Appeal allowed Microsoft’s appeal in the Pro-Sys v. Microsoft class action case.  This important decision, in which the Court of Appeal dismissed the plaintiffs’ action and set aside the earlier class certification order, was issued concurrently with a second Court of Appeal judgment in Sun-Rype Products v. Archer Daniels.  These decisions are now subject to an appeal to the Supreme Court of Canada, based on the unsettled ability of indirect purchaser plaintiffs to commence competition/antitrust class actions in Canada.

Competition Bureau Announces New Size of Transaction Threshold for Mergers for 2011

The Competition Bureau announced that the pre-merger notification transaction-size threshold for 2011 will increase to $73 million (see: 2011 Pre-Merger Notification Transaction-Size Threshold).

Competition Bureau to Challenge Completed BC Landfill Merger

The Competition Bureau announced that it has applied to the Competition Tribunal for a Tribunal order to dissolve CCS Corporation’s acquisition of Complete Environmental Inc., owner of the proposed Babkirk Secure Landfill in Northeastern British Columbia (see: Competition Bureau Challenges BC Landfill Merger).  Final arguments were recently heard by the Tribunal in this merger to monopoly case which, together with the ongoing Air Canada / United Continental case, is one of two contested mergers, the first in Canada in six years.

Spa Retailers Out of Hot Water After Settlement with Bureau for Allegedly False Energy Savings Claims

The Competition Bureau announced that it reached a settlement with two spa retailers in relation to allegedly false energy savings claims (see: Spa Retailers Required to Stop Making False ENERGY Star Claims). According to the Bureau, the retailers made misleading representations incorrectly conveying the impression that their hot tubs or insulation met the criteria of the ENERGY STAR Program.

Canada Passes Federal Anti-Spam Legislation – Bill C-28 – the Fighting Internet and Wireless Spam Act

In late 2010, Canada passed new anti-spam legislation (Bill C-28) which will, once in force, be among the strictest anti-spam regimes in the world.

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).”

Unlike Canada, where conspiracy (cartel) agreements between competitors are criminal, the European Commission commonly announces cartel investigations which are not criminal in Europe at an early stage of proceedings.

It is not yet clear what the basis of the Commission’s challenge and theory in this case is, given that the Commission’s investigation also involves Apple and that Article 101 of the EU Treaty prohibits not only agreements (e.g., price-fixing agreements) but also “concerted practices” between competitors which can, among other things, prohibit the exchange of pricing information between competing suppliers.

While the criminal conspiracy provisions of the Canadian Competition Act (under section 45) were amended in 2010, the Competition Bureau has yet to announce any price-fixing or other cartel cases under the new provisions (though in recent public remarks by the Commissioner of Competition, the Commissioner indicated that the Bureau was shortly preparing to do so – see: Commissioner of Competition Addresses Current Enforcement Priorities in Two Wide-ranging Talks in Vancouver).

____________________

For the European Commission’s complete news release see:

Antitrust: Commission opens formal proceedings to investigate sales of e-books

For more about Canadian conspiracy/cartel law see:

Conspiracy (Cartels)

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).

(See: Quebec Court of Appeal rejects B.C. Court of Appeal passing-on defence decisions in Pro-Sys and Sun-Rype and British Columbia Court of Appeal allows Microsoft appeal in Pro-Sys v. Microsoft – creates de facto passing-on defence).

The central issue to be decided by the Supreme Court will be the ability of “indirect purchasers”, that is purchasers further down the supply chain than “direct purchasers” of products, to proceed with claims against defendants in price-fixing class actions.

Presently, based on conflicting appellate decisions in British Columbia and Quebec, there is uncertainty as to indirect purchasers’ ability to proceed with such claims as well as the status of the related “passing-on defence” in Canada (which originated in the United States in the context of indirect purchaser class action litigation).

For the British Columbia Court of Appeal’s judgments in the Pro-Sys and Sun-Rype cases see:

Pro-Sys Consultants Ltd. v. Microsoft Corporation (B.C.C.A.)

Sun-Rype Products Ltd. v. Archer Daniels MIdland Company, et al. (B.C.C.A.)

For the procedural history of these cases before the Supreme Court see:

Pro-Sys Consultants Ltd., et al. v. Microsoft Corporation, et al. (docket 34282)

Sun-Rype Products Ltd., et al. v. Archer Daniels Midland Company, et al. (docket 34283)

For the leave judgments issued today by the Supreme Court see:

Supreme Court of Canada – Judgments in Leave Applications

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”).

Of these, several caught my eye, including the proposal to introduce damages as a Tribunal remedy and private actions for abuse of dominance.

While damages actions are possible and increasingly common for violations of the criminal provisions of the Competition Act, only remedial orders (e.g., orders to stop conduct, resume supply on usual trade terms, etc.) are available from the Tribunal.  Together with the leave requirement (leave is required from the Tribunal for private parties to commence private access proceedings before the Tribunal), the unavailability of damages is a common obstacle preventing parties from making applications to the Tribunal.  In this regard, for competition law matters where Tribunal applications are a possibility (refusal to deal, price maintenance and exclusive dealing / tied selling / market restriction), as a practical matter advice typically begins with a discussion of available remedies and the fact that damages are not available from the Tribunal (which in many cases may remove the Tribunal as a commercially viable option for parties).

With respect to the potential for private actions for abuse of dominance, this would be a significant step indeed for the Tribunal.  Presently, the Commissioner of Competition has exclusive jurisdiction to commence abuse of dominance proceedings before the Tribunal.  This, together with the typical cost and complexity of abuse applications, may have contributed to the fact that there have been less than 15 abuse of dominance cases since the modern Competition Act was introduced in 1986.  While monetary penalties were introduced for the first time for abuse of dominance in 2009 (“administrative monetary penalties” or “AMPs” of up to Cdn. $10 million), abuse of dominance remains one of the last reviewable practices under the Competition Act for which private parties have no right to make applications to the Tribunal (together with mergers, under which the Commissioner also has exclusive jurisdiction to challenge under the Act).  While this is an interesting proposal, it is not clear that opening the door to private parties would in practice lead to more abuse applications heard by the Tribunal based, among other things, on the significant cost and complexity of taking such proceedings forward.  Having said that, the availability of damages and a private access right for abuse of dominance may give aggrieved parties an additional option for negotiating resolutions to conduct engaged in by dominant firms (i.e., if the prospect of private access and monetary penalties existed).

Justice Simpson’s proposal for a unilaterally available reference power is also an interesting, and perhaps needed change.  While some limited reference powers for reviewable matters were added to the Competition Act as a result of 2002 amendments, they are only available to the Commissioner unilaterally, to private parties granted leave for private access proceedings under the refusal to deal and exclusive dealing/tied selling/market restriction provisions or to a private party subject to inquiry and the Commissioner on consent (i.e., the Commissioner’s agreement is required).  As such, the existing reference provisions for reviewable matters are of limited practical use for private parties where the Commissioner has (or is likely) to take a particular position on a reviewable matter.

In light of the fact that the most significant changes to Canada’s Competition Act in twenty-five years were recently made in 2009 and 2010, it remains to be seen whether the Government will have the appetite to make further amendments expanding the statutory jurisdiction of the Tribunal.  If so, this may open the door further to private competition actions in Canada.

For Madam Justice Simpson’s complete comments see: Canadian Competition Law Review (p. 49).

Canada now has three new criminal conspiracy offences for “hard core” cartel conduct, making bare price fixing, market allocation and supply restriction agreements per se illegal – i.e., without the necessity of establishing any anti-competitive effects on a relevant market (or markets).  At the same time, a second civil provision has come into force under which other commercial agreements (i.e., agreements that do not fall within the scope of the new criminal offences) may be subject to review, where they prevent or lessen competition substantially.

When did Canada’s new two-track conspiracy regime come into force?

On March 12, 2010, the Competition Bureau announced the coming into force of Canada’s new two-track conspiracy regime.  While the majority of the recent amendments to the Act came into force in March, 2009, Canada’s new two-track conspiracy regime came into force one year later – on March 12, 2010.

Why was Canada’s old conspiracy law changed?

Canada’s new U.S.-style criminal conspiracy regime is meant to make the enforcement of hard-core criminal cartel activity easier – i.e., bare price-fixing, market division and output restriction agreements between competitors and potential competitors -  by removing the former competitive effects test.  At the same time, the new rules are meant to allow a more detailed analysis of non-hard core agreements between competitors, such as joint venture and strategic alliance agreements (i.e., where a more detailed analysis of the potential effects on a market may be warranted).  In short, the new regime is meant to make catching clearly anti-competitive agreements easier while allowing for a more detailed review of agreements that may be competitively neutral or pro-competitive.

What is now illegal under Canada’s new criminal regime (i.e., section 45)?

Under the new criminal conspiracy provisions of the Act, three categories of agreements are now “per se” illegal (i.e., with no requirement to establish any negative effect on a relevant market or markets).  The following three types of agreements are now per se illegal: (i) agreements to fix, maintain, increase or control the price for the supply of a product (price fixing agreements); (ii) agreements to allocate sales, territories, customers or markets for the production or supply of a product (market division/allocation agreements); and (iii) agreements to fix, maintain, control, prevent, lessen or eliminate the production or supply of a product (supply restriction agreements).

What types of agreements may potentially be subject to review under the new civil agreements provision of the Competition Act (i.e., section 90.1)?

Agreements among competitors that are not caught by the three new per se criminal offences (price-fixing, market allocation and output restriction agreements) will be potentially reviewable under the new civil agreements provision (section 90.1).  Some of the types of agreements that may potentially be subject to challenge under section 90.1 include non-compete agreements, research and development agreements, joint purchasing agreements, joint production agreements, joint selling and commercialization agreements and information sharing agreements.

Are vertical agreements (e.g., supplier / customer, franchisor / franchisee, licensor / licensee agreements) caught under the new criminal provisions (section 45)?

Likely not.  While the previous conspiracy provisions applied to both vertical and horizontal agreements (e.g., supplier-distributor-consumer and competitor-competitor agreements), the new criminal provisions appear to be restricted to horizontal agreements between competitors (and potential competitors).  In this regard, it is thought that the scope of the new conspiracy provisions has been narrowed.  The Competition Bureau has also indicated in its recent Competitor Collaboration Guidelines that it will review the majority of allegedly anti-competitive vertical agreements under the new civil provision (section 90.1), or the Act’s other reviewable matters provisions (e.g., section 79 – abuse of dominance), not under the criminal conspiracy provisions.

Where can I get more information about the Competition Bureau’s enforcement policy under the new two-track regime and its approach to collaborations between competitors?

For more information about the Competition Bureau’s enforcement policy under Canada’s new two-track regime and its approach to collaborations between competitors, including joint ventures and strategic alliances, see: Competitor Collaboration Guidelines (Enforcement Guidelines) and Reaching an Agreement with Competitors (Pamphlet).

What is necessary to prove an agreement?

Canadian case law has established that while there must be a “meeting of minds” or “consensus” between parties, both informal and overt arrangements may be caught.  Moreover, it is well established that an agreement may be established based only on circumstantial evidence, which may include, among other things, evidence of meetings, exchanges of competitively sensitive information, identical or similar pricing (or sudden price stabilization), language suggesting the existence of an agreement, enforcement activities among competitors, attempts to keep meetings or other activities secret and conduct that can only be explained by the existence of an agreement.

Does an agreement need to be secret or confidential to be caught by section 45?

No.  Both “overt” (i.e., non-secret) and “covert” (i.e., secret) agreements may be caught by section 45 (the criminal conspiracy provision of the Competition Act.

Does an agreement need to be carried out to violate section 45?

No.  It is settled law in Canada that the offence is in the agreement, not in the carrying out of an agreement.  While acts in furtherance of a cartel may be used as additional evidence, they are not necessary in order to establish an offence under section 45.

What is the burden to prove that section 45 or section 90.1 has been contravened?

The burden for section 45 remains the criminal burden of proof – i.e., beyond a reasonable doubt.  The burden for section 90.1 (the new civil agreements provision) is the civil standard – i.e., on balance of probabilities.

What are the potential penalties for contravening Canada’s criminal conspiracy offences under section 45?

Under the new rules, the penalties for contravention of the criminal conspiracy provisions have been increased to include fines of up to $25 million (per count) and/or imprisonment for up to 14 years (increased from the previous $10 million per count and 5 years).  Canadian courts may also issue “prohibition orders” prohibiting the continuation or repetition of an offence and order a party to take certain steps to avoid future offences and comply with the law (e.g., to implement a corporate compliance program).  In reality, however, most penalties in Canada for violations of the criminal conspiracy provisions arise as a result of plea negotiations between the Competition Bureau and an accused.

What are the potential penalties under the new civil agreements provision (section 90.1)?

The federal Competition Tribunal now has the power, on an application by the Commissioner of Competition, to make remedial orders where it is established that an agreement prevents or lessens (or is likely to prevent or lessen) competition substantially in a relevant market.  The Tribunal may make an order: (i) prohibiting any person (whether or not a party to the agreement) from doing anything under the agreement or (ii) requiring any person, with their consent, to take any other action.  Unlike the criminal conspiracy provisions, however, the Tribunal does not have the power to impose monetary penalties and private parties do not have any right to commence private actions.

Who enforces the conspiracy provisions of the Competition Act?

The Competition Bureau is responsible for the administration and enforcement of the Act, while the Director of Public Prosecutions has exclusive jurisdiction to determine whether to commence prosecutions for alleged violations of the Act’s criminal offences, including the criminal conspiracy, bid rigging and criminal misleading advertising provisions.

What enforcement powers does the Competition Bureau generally have?

The Competition Bureau has broad powers of investigation under the Competition Act.  These include the power to obtain search warrants (including for computer searches), obtain court orders to compel document production and oral testimony under oath, as well as the ability to obtain wiretaps in some cases.  In some cases the Competition Bureau may rely on voluntary information requests, while in others it may resort to compulsory document or information requests (e.g., using its powers under sections 11 or 15 of the Act).

Are conspiracies an enforcement priority for the Competition Bureau?

Yes.  Criminal conspiracies, together with abuse of dominance and deceptive marketing, remain top enforcement priorities for the Competition Bureau.  Moreover, in the past fifteen years there have been more than eighty convictions for cartel offences in Canada with total fines of approximately $250 million.

What industries or sectors are practically most at risk?

The Competition Actis “law of general application”.  As such, it applies, with few exceptions to all businesses and industries in Canada.  Having said that, as a practical matter, the Competition Bureau has tended to focus its enforcement resources in recent years on industries with high consumer impact, including gasoline, real estate and high profile retailers.  Historically, industries in which demand is declining, there is excess capacity, homogenous products, competition primarily on price and consolidated markets have tended to be at the greatest risk for the formation of cartels.

What defences are available under the new conspiracy rules?

The recent amendments have introduced a new ancillary restraints defence that will apply where it can be shown that: (i) the agreement is ancillary to a broader or separate agreement that includes the same parties; (ii) the agreement is directly related to, and reasonably necessary for giving effect to, the objective of the broader or separate agreement; and (iii) the broader or separate agreement does not itself constitute an offence under section 45.  Other pre-existing defences and exceptions continue to apply (e.g., the exception for affiliates and export defence), while other defences have been repealed.

In addition, a new efficiencies defence has been created under section 90.1 that will apply where an agreement has resulted in (or is likely to result in) efficiency gains that are greater than, and will offset, the adverse effects of the agreement (i.e., any prevention or lessening of competition that will result or is likely to result from the agreement).  In this regard, the new civil provision dealing with non-criminal anti-competitive agreements is now more closely aligned with the existing merger provisions of the Act.

Can private parties sue for breach of the conspiracy provisions of the Competition Act?

Yes.  Under section 36 of the Act any person that has suffered actual loss or damage as a result of a contravention of the criminal provisions of the Act, including the criminal conspiracy provisions, may commence a private damages action.  Class actions are also possible for violations of the criminal provisions of the Act.  In general, it is thought that the recent amendments (which have lowered the burden to prove criminal conspiracies) together with several recent class action cases in British Columbia and Ontario (which has made it easier to certify price-fixing class actions) will lead to an increase in competition law private actions in Canada.

Have there been any recent significant competition law private actions?

Yes.  See for example: Supreme Court of Canada Denies Leave to Appeal in DRAMS Price-Fixing Class Action.  For more information about competition law private actions see: Competition Law Litigation in Canada.

What are some examples of recent penalties imposed for breach of the criminal conspiracy provisions?

The Competition Bureau recently announced that Solvay Chemicals has been fined Cdn. $2.5 million in relation to its role in a hydrogen peroxide price-fixing conspiracy.  See Solvay Chemicals Fined $2.5 Million in Hydrogen Peroxide Price-Fixing Conspiracy.  The Competition Bureau has also recently laid 28 additional charges in its ongoing investigation of a gasoline price-fixing cartel in Quebec.  See: Quebec Gasoline Price-fixing Case.  In the past fifteen years there have been more than eighty convictions for cartel offences in Canada with total fines of approximately $250 million.

Are reductions in penalties possible for cooperating with an investigation?

Yes. The Competition Bureau has a formal immunity program intended to encourage participants in criminal cartels to disclose their illegal conduct to potentially receive immunity from prosecution.  The Competition Bureau’s immunity program is set out in a Bureau Information Bulletin.  See: Immunity from Prosecution (Pamphlet), Immunity Program Under the Competition Act (Bulletin), Investigating Cartels, Memorandum of Understanding, Revised Draft  Information Bulletin on Sentencing and Leniency in Cartel Cases (Bulletin) and Sentencing and Leniency in Cartel Cases (Information Bulletin).  Immunity applications are made to the Competition Bureau, which will determine whether to recommend to the Director of Public Prosecutions that the request be granted.

What are the requirements to qualify under the Competition Bureau’s immunity program?

In general, a party may receive immunity where: (i) they are the first to approach the Competition Bureau with evidence of a cartel offence that the Bureau is unaware of or (ii) of which the Bureau is aware but has insufficient proof to refer the matter to the DPP for prosecution.  Both the Bureau’s immunity and leniency programs operate on a “first in” basis, and so time is of the essence in order for participants to seek immunity or leniency (where immunity is unavailable).

Other requirements that a party must satisfy in order to obtain immunity include immediately taking steps to stop its involvement in the illegal conduct, not having coerced unwilling parties to participate in the conspiracy, making full, frank and truthful disclosure of all evidence and information that is known (or available), disclosing all offences under the Act in which it may be involved and agreeing to provide full, timely and continuous cooperation during the Competition Bureau’s investigation.

Is more information available about the Competition Bureau’s immunity and leniency programs?

Yes.  For more information about the Competition Bureau’s immunity and leniency programs see: Immunity from Prosecution (Pamphlet), Immunity Program Under the Competition Act (Bulletin), Investigating Cartels, Memorandum of Understanding, Revised Draft  Information Bulletin on Sentencing and Leniency in Cartel Cases (Bulletin) and Sentencing and Leniency in Cartel Cases (Information Bulletin).

What are some of the key impacts for individuals and companies under the new laws?

Some of the expected impacts of the new rules include: (i) increasing the risk of engaging in hard-core anti-competitive conduct (e.g., price-fixing, market allocation or output restriction agreements), (ii) lowering the bar for the Competition Bureau and private plaintiffs to establish a criminal conspiracy under section 45 (the criminal conspiracy provision of the Act), (iii) increasing the importance of reviewing commercial agreements (and other commercial arrangements, such as information sharing arrangements or joint venture agreements) for competition law compliance and (iv) potentially leading to an increase in competition law litigation in Canada.

Are other Competition Bureau resources available?

Yes.  For example, see: Competitor Collaboration Guidelines (Enforcement Guidelines), Immunity from Prosecution (Pamphlet), Immunity Program Under the Competition Act (Bulletin), Investigating Cartels, Memorandum of Understanding, Reaching an Agreement with Competitors (Pamphlet), Revised Draft  Information Bulletin on Sentencing and Leniency in Cartel Cases (Bulletin), Sentencing and Leniency in Cartel Cases (Information Bulletin), Setting Your Own Price (Pamphlet) and Technical Bulletin on “Regulated” Conduct.

What are some examples of recent conspiracy cases and investigations in Canada?

For some examples of recent conspiracy cases and investigations in Canada see: Criminal Charges Laid Against 25 Individuals and Companies in Quebec Gas Price-fixing Case, Recent Speech by Canada’s Commissioner of Competition Indicates Tougher Enforcement Stance Against Criminal Cartels, Supreme Court of Canada Denies Leave to Appeal in DRAMS Price-Fixing Class Action, Solvay Chemicals Fined $2.5 Million in Hydrogen Peroxide Price-Fixing Conspiracy, Competition Bureau Announces Coming Into Force of New Conspiracy Regime, Two Landmark Supreme Court of Canada Cases, Canada’s New Conspiracy Regime – Potential Implications and Key Practice Points for Commercial Lawyers, Canada’s New Criminal Conspiracy Rules – Some Potential Implications for Companies and Trade Associations, Canada’s New Competition Law – Some Potential Implications for Real Estate Brokers, Agents & Boards.

OUR SERVICES

We practice federal competition law, provide Canadian competition law advice to clients across Canada and internationally and offer a full range of competition law services including in relation to the criminal conspiracy, merger, abuse of dominance, misleading advertising and deceptive marketing provisions of the federal Competition Act.  We also provide Canadian foreign investment law advice under the federal Investment Canada Act.

Our services in relation to criminal conspiracies and competitor collaborations include advice on the application of the new conspiracy rules to commercial activities, structuring commercial agreements and joint ventures to comply with the new regime, designing competition law compliance programs for companies and trade associations, preparing compliance guidelines for key commercial activities (e.g., guidelines for the conduct of meetings, information exchanges, benchmarking projects and joint venture activities), applications for binding Competition Bureau advisory opinions and advice in relation to the Competition Bureau’s immunity and leniency programs.

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.

CONTACT US

We provide a full range of Canadian competition/antitrust law and consulting services to domestic and international clients.  Contact Us