“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.’”

His articulate note is also interesting given that the Competition Bureau has on occasion reviewed Canadian self-regulated professions, including the legal profession, most recently in its Self-regulated professions report.

It’s time to open legal doors – Vern Krishna

When it comes to monopolistic protection, no one does it better than the legal profession.

As businesses expand internationally, so also does the demand for transnational legal services. However, although there is a lot of talk of business globalization, law societies are less fervent about importing foreign lawyers on to their turf. Their reluctance is premised on the theory that legal fees are a zero sum game and that monopolies create larger incomes.

On the supply side, the accreditation of foreign trained lawyers to practice is a patchwork of nationalist, monopolistic and regulatory rules. To be sure, regulatory bodies that admit lawyers to practice must protect consumers of legal services. In doing so, however, they should not create artificially high barriers to entry under the guise of “public interest.”

There are essentially four basic forms of accreditation systems: statutory regimes; country of origin systems; court controlled admission standards; and competence-based assessments.

Statutory systems are simplest and usually exclusionary. India and Brazil, for example, effectively exclude all foreign lawyers from practicing law in their jurisdictions. Section 24 of the Indian Advocates Act requires lawyers who wish to be enrolled at the bar to be Indian citizens and have a law degree from an Indian law school.

Country of origin systems can be facilitative or restrictive. The United Kingdom uses the country of origin approach for European Union lawyers and allows them to practise in England and Wales under certain conditions. This seemingly liberal approach was not designed by the legal regulator, but imposed on it as an unintended consequence of the Treaty, which provides for the mobility of all services – from waitressing to hairdressing – within the EU.

The Law Society of England and Wales admits non-EU “foreign” lawyers to practice if they successfully complete a number of examinations. The number of exams depends upon the foreign lawyer’s country of origin. For example, an Ontario lawyer can be admitted as a solicitor in England by writing a test in Professional Conduct and Accounts. This is in marked contrast to the admission of U.K. solicitors into Canada, who must write five or more examinations.

Prior to 1977, Canadian provinces used country of origin and citizenship rules to admit lawyers. Lawyers from the white Commonwealth – United Kingdom, South Africa, Australia and New Zealand – could transfer easily into the law societies of most Canadian provinces, except Quebec. Lawyers from other countries faced significant barriers to admission.

Some jurisdictions – for example, New York – control rights of legal practice through their courts. New York requires a degree from an approved American Bar Association (or other approved) law school and successful completion of the state bar examinations. The New York model does not distinguish applicants by their county of origin or citizenship.

It is not entirely coincidental that the most restrictive admission policies for foreign lawyers are in the world’s largest and fastest-growing BRIC economies – Brazil, Russia, India and China. China is expected to overtake the United States as the world’s largest national economy by 2030. India is expected to replace Japan in third place. Both are magnets for legal services.

Some lawyers overcome the international restrictions by practicing on a “fly in, fly out” – or FIFO – basis. Others set up shop in the foreign country in collaboration with local counsel. However, India prohibits foreign lawyers from setting up shop in the country and it is unclear whether they can operate even on a FIFO basis. Thus, foreign lawyers conduct business in India through their offices in Singapore and Dubai.

A “competence assessment” model evaluates foreign law qualifications to determine whether the person is competent in the laws of the host country. The regulatory body establishes an academic or examination regime to facilitate the requisite transfer of skills in areas of deficiency.

Canada uses a competence-based system to evaluate foreign law degrees and rights of practice. The Federation of Law Societies of Canada (FLSC) evaluates each applicant’s foreign legal credentials against the norms of approved Canadian law degrees to determine what further work is required to demonstrate competence in Canadian law.

To be sure, knowledge of the fundamental principles of Canadian law is a reasonable requirement for all foreign trained lawyers seeking to serve the public. Under the guise of public interest, however, the requirements of Canadian law have been set at artificially high levels that create financial and other barriers to entry. For example, in a recent decision, FLSC refused to grant an English law graduate with a first-class law degree (ranking in the top 2%) any credit for her Masters of Law degree from the University of Toronto law school.

Ironically, there appears to be more collaboration amongst legal academics than there is among members of the practicing bar. Cornell Law School, for example, has signed an Agreement of Cooperation and Memorandum of Understanding with Jindal Global Law School (an Indian national law school) committing the two institutions to promoting collaborative initiatives – such as, faculty and student exchanges, and joint teaching and research initiatives. Other U.S. Ivy League schools are racing to sign agreements with the national law schools in India.

The animosity toward foreign lawyers may be cultural, historical or simply money-related protectionism. Regulatory bodies rarely lead innovation, but must have it foisted upon them. As trade expands and multinational corporations demand international legal services, regulators should recognize that opening legal markets to foreign lawyers is not a zero sum game, but good for business, society, the public interest and lawyers incomes.

- Reprinted with permission.

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

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As such, given that the improper operation of a promotional contest can lead to civil or criminal liability, it is important to review proposed promotional contests for compliance with federal and provincial laws.

COMPETITION ACT

Short Rules

The Competition Act largely requires that certain disclosure be made when conducting “any contest, lottery, game of chance or skill, or mixed chance and skill, or otherwise [disposing] of any product or other benefit …”

Some key Competition Act requirements include: (i) disclosing the number and approximate value of prizes, (ii) disclosing the area (or areas) to which they relate and (iii) any fact that may materially affect the odds of winning.  The Act also prohibits contest organizers from “unduly delaying” the award of prizes.

Based on these requirements, most contest organizers provide a short version of a contest’s terms (frequently referred to as “short rules”) in all point-of-purchase materials regardless of media (i.e., in all print, online and other electronic media), with a full version of the contest rules available on request (and often provided on the organizer’s website).  Point-of-purchase disclosure (short rules) commonly includes both the required statutory disclosure and other key contest elements.

While short, and usually straightforward, it is important that the required statutory disclosure be drafted precisely and correctly.  It is also important that the timing for the launch of a contest and accompanying promotional materials ensure that the necessary disclosure is included in all public marketing materials.

General Misleading Advertising Provisions

In addition to specific rules relating to promotional contests, the “general misleading advertising” provisions of the Competition Act also apply to contests.

These provisions (sections 52 and 74.01) prohibit materially false or misleading representations to the public for the purpose of promoting products (or any business interest).  The potential penalties for contravening these provisions can be severe and include civil fines of up to $750,000 (for individuals) and $10 million (for corporations) and court orders to cease the conduct, publish corrective notices or compensate consumers.

As such, it is important that promotional contest rules and marketing materials be reviewed for compliance with the misleading advertising provisions of the Competition Act as well as the standalone contest provision (section 74.06).

Other Competition Act Rules

In addition to the standalone promotional contest provision, the Act also contains several other specific provisions regulating contests operated in the context of (a) telemarketing (section 52.1) and (b) prize notices (section 53).

Section 52.1 of the Act prohibits telemarketers from conducting contests where (a) the delivery of a prize (or other benefit) is or is represented to be conditional on prior payment or (b) adequate and fair disclosure is not made of the number and approximate value of prizes, the area or areas to which they relate and the odds of winning.

Section 53 prohibits prize notices sent by electronic or regular mail that give the general impression that a recipient has won (or will win) a prize and requires a payment (or incurring another cost) unless the recipient actually wins a prize and certain required disclosure is made (including the number and approximate value of prizes, regional allocation of prizes and odds of winning).

Internet Contests & Promotions

The Competition Bureau also takes the position that the promotional contest provisions of the Competition Act, as well as the general misleading advertising provisions, apply to Internet marketing and advertising (see Competition Bureau, Enforcement Guidelines, Application of the Competition Act to Representations on the Internet).

In this regard, the Bureau’s view is that special considerations may apply in the online environment to ensure that the required statutory disclosure for promotional contests is met:

“Pursuant to section 74.06 of the Act, in contests designed to promote a product or business interest, adequate and fair disclosure must be made of certain information, including facts which materially affect the chances of winning. … The Bureau takes the position that all required disclosures must be displayed in such a way that they are likely to be read.  In the context of representations made on-line, what is considered adequately displayed will depend on the format and design of the Web site.  For example, a notice of a contest should not require readers to take an active step, such as sending an e-mail or placing a phone call, in order to obtain the required information.  The Bureau does not consider clicking on a clearly labelled hyperlink as being an ‘active step.’”

CRIMINAL CODE

In addition to the promotional contest provisions in the Competition Act, the federal Criminal Code also governs the operation of contests in Canada (sections 206 and 207).  In particular, the Criminal Code makes it a criminal offence to operate illegal lotteries.

While the relevant Criminal Code provisions are complex and somewhat archaic, in general an illegal lottery consists of: (a) a prize, (b) chance and (c) consideration (something of value provided by contestants as a condition for eligibility or participation).

Based on the Criminal Code requirements, promotional contest organizers commonly remove either the consideration element (e.g., providing a “no purchase necessary” entry option), the chance element (e.g., adding a skill-testing question) or both in order to remove a promotional contest from the scope of the illegal lottery provisions of the Criminal Code.

It is worth noting, however, that the determination of what constitutes “consideration” and “chance” can be challenging and complex in some cases and few modern cases have considered key issues in relation to the operation of contests.  Most contest organizers include a multiple-step mathematical skill testing question in an effort to remove the chance element.

CONTRACT LAW

In addition to the regulatory requirements of the federal Competition Act and Criminal Code, promotional contests have also been held to be contracts.  For this reason, in addition to statutory requirements, contests are also governed by the common law of contract.

As such, in addition to ensuring compliance with applicable statutory requirements, it is important that contest terms and conditions are carefully and precisely drafted to reduce potential contractual liability.

This includes a careful review of short rules, long rules and winner release documentation to ensure that the terms are precise, enforceable and to reduce the likelihood of a credible contractual challenge.

Potential technical problems and other contingencies should also be addressed in contest rules, including in relation to the unavailability of prizes as disclosed, technical problems arising from the operation of the contest (e.g., computer, Internet or server issues) and typically giving contest organizers broad and unilateral discretion to make decisions.

PRIVACY LEGISLATION

Canadian privacy legislation also applies to promotional contests.  In this regard, contest organizers should be cognizant of federal privacy legislative requirements under PIPEDA, which include requiring consent for the collection, use, storage and disclosure of personal information collected in relation to the operation of a contest.

These may include advising contestants of how their personal information will be used, as well as the contest organizer’s practices and policies in relation to the security (and destruction) of contestants’ personal information once a contest has closed.

INTELLECTUAL PROPERTY & OTHER LEGAL CONSIDERATIONS

In addition, intellectual property issues can sometimes arise in the operation of contests.  For example, care must be taken that consents are obtained in some cases when the trade-marks or logos of another company are used (e.g., in relation to prizes) and that the contest includes rules for the transfer of rights if, for example, the contest involves the creation of original artistic works.

Another commonly encountered issue that can arise in connection with the operation of contests is the eligibility of minors, based on provincial laws restricting the right of minors to contract.

SOME PRACTICAL CONSIDERATIONS

Promotional contests in Canada are governed by the Competition Act, the Criminal Code, privacy legislation and the common law of contract.  In addition, Quebec has a separate regulatory regime governing contests.

As such, given that the improper operation of a contest can lead to civil or criminal liability, it is important to review proposed promotional contests for compliance with federal and (if applicable) provincial laws.  The following are some key tips for operating a successful contest:

1.  Take care to avoid the Criminal Code provisions governing illegal lotteries (e.g., provide a “no purchase necessary” entry option and skill element, such as a multiple-step mathematical question);

2.  “Short rules” should include all Competition Act disclosure requirements for point-of-purchase materials;

3.  Ensure that precise “long rules” are prepared, particularly anticipating potential contingencies (e.g., technical problems, etc.);

4.  Ensure that none of the advertising or marketing materials are generally false or misleading (i.e., comply with the “general misleading advertising” sections of the Competition Act);

5.  If contests are part of your company’s routine marketing, consider developing a check-list to ensure that all legal requirements are met;

6.  Ensure that all key contest elements are as clear and precise as possible (e.g., eligibility, how to enter and descriptions of the prize and odds of winning);

7.  Ensure that Quebec legal requirements are met (or take care to exclude the contest from Quebec); and

8.  Obtain U.S. legal advice if the contest will be open to U.S. residents.

COMPETITION/ANTITRUST LAW & ECONOMIC TERMS

For competition/antitrust definitions and terms see:

Antitrust Alphabet

PROMOTIONAL CONTEST LINKS & RESOURCES

LEGISLATION

Competition Act

Criminal Code

COMPETITION BUREAU

Bulletins

Misleading Representations and Deceptive Marketing Practices: Choice of Criminal or Civil Track

Enforcement Guidelines

Application of the Competition Act to Representations on the Internet

Deceptive Notices of Winning a Prize – Section 53 of the Competition Act

Promotional Contests – Section 74.06 of the Competition Act

Telemarketing – Section 52.1 of the Competition Act

Pamphlets

Deceptive Prize Notices

False or Misleading Representations and Deceptive Marketing Practices

What You Should Know About Telemarketing

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We provide federal competition and foreign investment law services to clients across Canada and internationally.

Again Lego finds itself under an attack from Mega Brands, a Montreal-based competitor and maker of Mega Bloks. This time – in U.S. District Court in the Central District of California.

Lego owns a U.S trademark for the design of its world-famous blocks. Mega Brands claims that the trademark registration should be invalidated, which would allow Mega Brands to freely export its products to the United States.

The foundation of the claim is that what Lego has is not really a trademark. Rather, it is an attempt to obtain patent-like protection under the guise of a 3D trademark.

In simple terms, patents protect underlying ideas of inventions, while trademarks protect distinctive elements that allow the public to distinguish products and services of one business from products and services of another business. Trademark rights do not expire (as long as the trademark owner renews the registration on time), while patent rights only last for 20 years.

Common law courts have developed the so-called doctrine of functionality which prevents registration as trademarks of 3D objects, if such a registration would amount to protecting the functional side of these objects.

In Canada, the Trade-Marks Act makes it clear that “No registration of a distinguishing guise interferes with the use of any utilitarian feature embodied in the distinguishing guise.”

Interestingly enough, one of the leading cases in Canada dealing with the doctrine of functionality was the decision of the Supreme Court of Canada in Kirkbi AG v. Ritvik Holdings Inc., which happened to involve the same LEGO blocks.

Mega Brands’ representative stated:

“Lego’s patents expired more than 20 years ago and courts around the world, including the United States, have ruled against its attempts to use trademark law for functional elements. Its claims have been dismissed by lower courts in numerous countries.”

In fact, it’s a tough call. Are the LEGO blocks nothing more than a “clever locking system” in the words of Mr. Justice LeBel? If the answer is no, what is it in the shape of the LEGO blocks that distinguishes them from any other blocks that would employ the same locking system? Can Lego protect anything but its own name and the higher-level designs?

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.

“ … drum roll, please, we will be introducing the Seventh Edition of Antitrust Law Developments this spring, for which we all will be especially thankful whenever we need to research the law.”

For Canadian competition lawyers, who practice in a virtual jurisprudential vacuum, this book and U.S. cases are sometimes something to be thankful for indeed.

For more information about the ABA’s competition/antitrust law publications, see:

American Bar Association, Section of Antitrust Law – Publications

For more information or to join the debate, see:

Globe and Mail Debate: How can Canada become more competitive in the global marketplace?

From the Berkeley Antitrust Blog:

“The Berkeley Antitrust Blog is an endeavor of current students of the Berkeley School of Law with many having been practicing antitrust lawyers but all being antitrust enthusiasts. The aim behind the blog is to create a platform for students, experts and professionals to write about the recent developments and ideologies relating to antitrust and competition law.

The blog looks to benefit from the synergies of varied viewpoints from different jurisdictions and offer a truly global perspective on antitrust law, which is crucial today owing to the growing intersection of the markets and economies with many antitrust violations resulting in parallel proceedings in various jurisdictions around the world.

Lastly, the blog hopes to work as a global networking device where students, people pursuing academia and professionals in the field can exchange thoughts, share experiences, get connected with each other.”

We wish them best of luck.  For other international competition/antitrust law blogs see: Competition/Antitrust Blogs.

“After the Commissioner announced that she was proceeding against Rogers Communications Inc. and Chatr Wireless Inc., Wind Mobile issued a press release claiming credit for the Commissioner’s decision to institute proceedings and Mobilicity sent a dance troupe, known as the Mobilicity Magenta Militia dance troupe, to Rogers Communications Inc. headquarters to engage in what might be termed a victory dance or demonstration of joy.  A video of a portion of this victory dance or demonstration of joy was embedded in the affidavit of Arnold Abramowitz, filed by the respondents on this application.”