“Price fixing is a type of theft from customers. It’s a form of fraud. It seriously undermines our market-based economy and gives rise to substantial losses for the economy as a whole. It is in the public interest that such conduct be strongly deterred. … as is increasingly recognized around the world, price-fixing and other hard-core cartel conduct cannot be effectively deterred unless individuals who may be tempted to engage in such conduct face serious prospect of at least imprisonment for their behaviour…the court may be catching up more quickly than you think in the stricter approach to sentencing in the competition law area that is increasingly being adopted in other jurisdictions and that has been advocated in the literature.“
(Chief Justice Crampton, Maxzone Auto Parts (Canada))
“[W]hether antitrust policy is sound depends on the enforcement machinery as well as on the legal doctrine. It is not enough to have good doctrine; it is also necessary to have enforcement mechanisms that ensure, at reasonable cost, a reasonable degree of compliance with the law.”
(Richard A. Posner)
“This renewed focus of ours on enforcement — what I consider the essence of our mandate — has obvious benefits. Through our principled, direct and clear approach, we intend to continue to effect compelling positive change on the Canadian economy — more important than ever, given today’s economic challenges.”
(Commissioner of Competition, Melanie Aitken)
Recent Developments: New Competition Bureau anti-cartel compliance materials including: compliance video, Competitor Collaboration Pamphlet, updated Bid-Rigging Pamphlet and Trade Associations Pamphlet – see: here.
The Competition Act is enforced and administered by the Competition Bureau, a federal enforcement agency headed by the Commissioner of Competition. The Bureau investigates potential competition law offences and civil “reviewable matters” under the Competition Act based on its own investigations and complaints from consumers, competitors and other marketplace participants.
The Commissioner and Bureau staff have significant powers to investigate potential violations of the Act, which include the ability to search premises and seize documents, search and seize computer records, tap phone lines, compel individuals to testify under oath and require companies or individuals to produce documents or responses to written information requests.
CIVIL “REVIEWABLE MATTERS” & CRIMINAL OFFENCES
The Commissioner has the power to investigate and refer criminal matters to the Director of Public Prosecutions (“DPP”) for prosecution. Criminal offences under the Act include conspiracy (i.e., price-fixing, market allocation/division or supply/output restriction agreements between competitors), bid-rigging, misleading advertising in some cases, deceptive telemarketing and pyramid selling. While the Bureau investigates potential violations of the Competition Act’s criminal offences, the responsibility for prosecutions lies with the DPP (although in practice the Bureau and the Public Prosecution Service work closely together on criminal competition matters).
The Commissioner is also responsible for investigating and initiating applications relating to potential contraventions of the Act’s civil “reviewable matters”, which are primarily adjudicated before the federal Competition Tribunal (a specialized administrative body consisting of judges and “lay” experts). The Act’s civil reviewable matters include the civil misleading advertising, refusal to deal, price maintenance, abuse of dominance and exclusive dealing / tied selling / market restriction sections.
COMMENCEMENT OF COMPETITION LAW MATTERS
Proceedings may be commenced under the Competition Act by the Competition Bureau itself based on its own investigations, as a result of complaints from customers, competitors or other industry participants or from persons that have (or may have) contravened the Act and are seeking immunity or leniency under the Bureau’s Immunity or Leniency Programs.
In addition to Bureau investigations, private parties may also in some cases commence private civil actions for violations of the criminal sections of the Act, including the criminal conspiracy and criminal misleading advertising sections, or make “private access” applications to the Competition Tribunal for Tribunal orders under the refusal to deal, price maintenance and exclusive dealing / tied selling / market restriction sections.
Contravention of the Act can result in significant penalties, lost time and negative publicity for individuals, companies, other types of organizations and their executives and personnel.
These include criminal fines, civil “administrative monetary penalties” or “AMPs” (essentially civil fines), imprisonment, damages (or settlements) arising from private civil actions and court orders (injunctions or prohibition orders) to stop or modify conduct.
Some of the specific penalties under the Act include criminal fines of up to $25 million (under the criminal conspiracy provisions), civil fines of up to $10 million (for abuse of dominance and civil misleading advertising) and imprisonment for up to 14 years.
There is also potential director and officer liability under the Act. In this regard, the Competition Bureau commonly pursues individual executives as accused in criminal matters and plaintiffs frequently name directors and officers as defendants in civil actions.
As a practical matter, however, the Bureau is more likely to proceed criminally, as opposed to civilly, where there has been intentional or fraudulent anti-competitive conduct rather than accidental or negligent violations of the Act and immediate remedial steps are taken.
Private parties (e.g., consumers or competitors) can also commence private actions for damages where they have suffered actual damage or loss as a result of a violation of the criminal provisions of the Act (or as a result of the breach of a Tribunal or court order made under the Act). Class actions may also be commenced under the Act and are increasingly common.
COMPETITION BUREAU SEARCHES
The Bureau has a wide range of enforcement powers available to investigate potential violations of the Act, including the ability to obtain search warrants. The Competition Act also contains obstruction provisions, which make it a criminal offence to impede or prevent (or attempt to impede or prevent) inquiries or examinations under the Act.
As such, an effective compliance program should include guidelines on what to do in the event of a search by the Bureau – for example, how to deal with Bureau officials during a search, advising company/organization personnel, the control of information and PR, inspecting the search warrant and reducing the risk of breaching the obstruction provisions of the Act.
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