There used to be a saying that nothing in life is free.  In Australia, it seems, there are no free TVs, or at least not that many.  In a curious case posted by the Australian ACCC earlier today (or was that yesterday?), it announced that it had settled an allegedly false free TV promotional offer with Australian cable company FOXTEL.

According to the ACCC, FOXTEL ran a promotion on, naturally TV, claiming that customers who subscribed to a 12 month plan would receive a free 22 inch neoniQ TV within ten days of cable service installation.  As it turns out, 8,400 people subscribed but the offer was limited to 1,500 free TVs, with a large number of subscribers never receiving the promised TVs.

It seemed to me in reading this case that it also illustrated a few points relevant in Canada, including ensuring that advertising claims are both true and not misleading (e.g., through banner or headline claims that cannot stand on their own or may be contradicted by disclaimers), the importance of including any important conditions or limitations in clear language and in close proximity to primary claims (e.g., limitations on promotional giveaways or other offers), and following through on promotional claims (e.g., that advertised claims are generally fulfilled, as well as ensuring that the award of promotional contest prizes are not unduly delayed and that reasonable quantities of products are available where “bargain price” type claims are made, as required by the Competition Act).

The Competition Bureau has on occasion challenged marketers for making allegedly false “free” claims, including Moores where the Bureau alleged that the retailer’s “buy one get one free” suit claims failed to adequately disclosing the fact that the offer applied to select designer suits only, Premier Fitness Clubs for allegedly making “free trial offer” claims where there were additional fees or contract requirements to qualify, and more frequently sweepstakes promoters for making false or deceptive “free” prize claims.

Also, while the Bureau has from time-to-time expressed its enforcement policy on the use of the term “free” in advertising, one its most recent policies, expressed in its Corporate Compliance Programs Bulletin and Misleading Advertising Pamphlet is that the price of a product or service should not be increased to cover the cost of a “free” product (see e.g., here and here).

At the end of the day, the basics around “free” claims in Canada are pretty simple: if you say you’re going to do it, do it; if there are limited numbers, disclose that; don’t make banner “free” claims if there are additional fees; and don’t increase the price of products to cover giveaways.

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In an interesting though not totally unexpected development, the Competition Bureau announced earlier today that it was appealing the Competition Tribunal’s decision in the TREB abuse of dominance case to the Federal Court of Appeal (Commissioner of Competition v. The Toronto Real Estate Board, file no. A-174-13).

In dismissing the Bureau’s case, the Tribunal essentially concluded that the Bureau’s application had been wrongly made under the abuse of dominance provisions of the Competition Act (section 79) while suggesting that the more appropriate provision was the new civil agreement section of the Competition Act, section 90.1 (based, in part, on finding that TREB did not compete in the relevant market, residential real estate services in the GTA and, as such, any anti-competitive acts could not therefore be directed toward a competitor).

In announcing the appeal, Interim Commissioner of Competition John Pecman said:

“Allowing the Tribunal’s finding to stand could leave a significant loophole in the application of the Competition Act … While most trade associations comply with the Competition Act, we are concerned that, if the Tribunal’s decision is left to stand, trade associations may be tempted to develop rules aimed at preventing or eliminating potential new forms of competition.”

In the Bureau’s notice of appeal, in which it is seeking that the Tribunal’s order be set aside and the case returned to the Tribunal for re-determination, it argues among other things that the Tribunal erred by:

1.  Finding that section 79 does not apply to industry associations that do not compete in the market in which effects are alleged to be occurring, but engage in anti-competitive conduct in their members’ market (which appears to be the argument that under section 79 it is only necessary to control “a” market).  On the face of section 79 it is also possible to make challenges where a firm possesses market power in one market and through anti-competitive acts competition is prevented or lessened in another.

2.  Related to the above point, that a dominant firm must itself compete in a market that it controls.

3.  The Bureau also argues that the Tribunal erred in applying the Federal Court’s decision in Canada Pipe, which did not consider the second branch of the test for abuse of dominance (a practice of anti-competitive acts) in the context of a trade association.  This is apparently an effort to distinguish Canada Pipe.  The Bureau is also further attempting to challenge the Tribunal’s finding that a practice of anti-competitive acts must be directed at a competitor, arguing that the Tribunal erred in its interpretive findings in this regard that relied, among other things, on subsection 79(4) of the Act and on the Bureau’s own Abuse of Dominance Guidelines.

In sum, the Bureau’s arguments in its appeal focus on whether a firm (or in this case association) must be present or compete in the market in which anti-competitive effects are alleged and whether any anti-competitive acts engaged in by an association must be directed at one of its competitors (e.g., another trade or professional association).

As I pointed out in my earlier note on the Tribunal’s dismissal of this case, perhaps the most interesting question is the extent to which trade or professional associations can be used as a structure to avoid the abuse of dominance provisions of the Competition Act.

If the Bureau is successful, it seems to me that it will generally retain broader options to challenge trade and professional association conduct, including potentially single or joint dominance theories and an ability to seek administrative monetary penalties for challenged association conduct (a remedy only recently added to the abuse of dominance provisions of the Act but not available under the civil agreement provision).  On the other hand, if TREB succeeds, the Bureau’s avenues of potential challenges of associations and available remedies may be narrower, although similar challenges could still, as the Tribunal pointed out, be made under the civil agreement provision, albeit without the availability of AMPs.  As a practical matter, the Bureau, even if it lost its appeal, would also still retain its ability to challenge association conduct under other provisions of the Act, including in some cases the criminal conspiracy provisions (e.g., in relation to alleged price-fixing, boycott or other concerted conduct).

The case could also have wider implications including new authority for challenging conduct with effects in unrelated markets and potentially generally broadening the application of the abuse of dominance provisions to include conduct that is not directly aimed toward competitors.

It also seems to me to be worth pointing out that, although there is quite established authority in Canada that anti-competitive effects must be directed toward competitors, that question can in reality be much more difficult in some cases and a matter of characterization (not unlike similar issues that can arise in the context of cartel challenges to associations related to whether board members or other executives are acting in the interests of the association, and therefore arguably unilateral conduct, or in individual or private interests, thereby supporting a concerted theory of harm).

In any event, it will be very interesting indeed to see what arguments are made by TREB in response to the Bureau’s new challenge and on what side, if the case proceeds to a hearing, the Court will fall.

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In one of the most curious Canadian competition related stories that caught my eye last week, many Canadian lobster fishermen in the Maritimes have collectively stopped fishing in an apparent protest over what they say are unfairly low lobster prices.

According to media reports (see e.g.: here, here and here), lobster fishermen in P.E.I., New Brunswick and Nova Scotia have tied up boats in a collective effort to raise wholesale lobster prices that have ranged between $2.75 and $4.00 (for canner and market-sized lobsters). Evidently, attempts by the P.E.I. Fishermen’s Association to negotiate higher prices with processors have been unsuccessful.

While RCMP are reportedly on protest scenes to “keep the peace” so to speak, relatively little is being said about the potential competition law implications of this lobster blocade.  While some fishermen have been reported as saying that the current prices are “unreasonable”, “unfair” and the like, the Competition Act prohibits agreements between competitors to fix prices, divide markets or prevent or lessen supply (i.e., the criminal conspiracy offences of the Competition Act that were amended in 2009 are potentially broad enough to make collective boycotts a criminal offence, in the absence of a valid exemption or defense).

The Competition Act does, however, include some qualified exemptions for collective bargaining activities, which include combinations between workmen or employees for their “own reasonable protection”, agreements involving employer associations relating to collective bargaining with their employees and a specific exemption for certain collective activities involving fishermen.  The fisherperson carve-out exempts: “contracts, agreements or arrangements between or among fishermen or associations of fishermen and persons or associations of persons engaged in the buying or processing of fish relating to the prices, remuneration or other like conditions under which fish will be caught and supplied to those persons by fishermen”.

While the more general collective bargaining exemptions are qualified to, among other things, combinations limited to the “reasonable protection” of workmen/employees and, in the case of the employer association exemption, collective bargaining with an employer association’s employees, the fisherperson exemption of the Act (subsection 4(1)(b)) is somewhat more broadly worded and, as such, might potentially provide more of a “safe harbour” for lobster fishermen collectively refusing to fish and sell their catches in this case.

In this regard, in one of the few Canadian cases to consider the fisherman exemption (Couture v. Hewison), the British Columbia Supreme Court described it as follows:

“A comparison of the two paragraphs reveals that para. (a) is much broader, reflecting the historical basis, that being to give legal recognition to trade union activity in general so long as it is directed towards ‘their own reasonable protection as such workmen or employees’. … para (a) is limited to activities of workmen and employees for their own reasonable protection as such, whereas para. (b) applies to both fishermen and buyers and within the limits of its scope, i.e., fish prices, remuneration or other like conditions the exemption is absolute and not subject to any test as to the ‘reasonableness’ of the arrangement. … As I mentioned during the hearing it is my view that unlawful conduct cannot be said to come within ‘reasonable’ protection.  However, it is not all unlawful conduct that may be the subject of questioning but only unlawful conduct that is relevant to the inquiry.”

Also, while there has been very limited judicial consideration of the application of these qualified collective bargaining exemptions to collective action by fishermen, the Couture case also held that fishermen were “workmen” for one of the more general collective bargaining exemptions (subsection 4(1)(a)).  Having said that, the case law considering these exemptions is rather thin.  As such, it will be interesting to see whether any competition law issues will be raised (or challenges made) in this case.

Collective bargaining and fisherperson exemptions aside, it’s also probably worth noting that while the application of the amended Competition Act to collective refusals to deal still largely remains to be tested, collective refusals to deal (i.e., boycotts) involving competing suppliers (and in some cases their associations) have been subject to criminal challenges under the former Competition Act.

As such, it is incumbent on groups of competing suppliers and their associations to carefully consider whether collective efforts to refuse to deal or supply (or indeed other collective steps that may impact competition) have the benefit of any of the Competition Act’s exemptions or defenses or, if not, whether such collective steps may potentially raise criminal competition law issues.

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The C.D. Howe Institute has published a new report on cartel detection entitled Coming in From the Cold: Improving Cartel Detection and Reporting.  The report argues in general that the Competition Bureau and federal government should ensure that sufficient resources and policy emphasis are placed on the investigation, detection and prosecution of domestic cartels (i.e., Canadian price-fixing and other conspiracies).

Currently, the Bureau’s tools for detecting price-fixing, bid-rigging and other criminal competition/antitrust cartels include the ability to obtain wiretaps, its Immunity and Leniency Programs and Competition Act whistleblower protections.  Under the Bureau’s current Immunity Program, which the Bureau has described as its “single most powerful means of detecting criminal activity”, a party or company implicated in criminal conduct under the Competition Act may offer to cooperate with the Bureau in an investigation and, if all of the requirements of the program are met, receive full immunity from prosecution.  Under the Bureau’s Leniency program, applicants that are not entitled to full immunity – for example, because they are not first in – may still be eligible for 50% or 30% reductions in fines.

The C.D. Howe report suggests that, given the disparity between the Bureau’s participation in many international cartel investigations, such as the auto parts and Libor cases, and relative rarity of domestic prosecutions, that the Bureau’s current policies may be insufficient to motivate cartel members to self-report.

In this regard, the report recommends that: the Bureau’s cartel detection policies should aim to increase the likelihood of a successful and thorough prosecution even where there may only be one cartel defector; the awareness of the potential criminality of cartel behavior and existence of Immunity and Leniency Programs should be increased; and ensure that there are clear differences in how Immunity Program participants are treated (compared to subsequent Leniency Program members) to create a stronger incentive to report.

Some of the points made by the new C.D. Howe report that I found interesting include raising the questions of whether foreign and domestic immunity applicants may face different incentives to report, whether more domestic cartel enforcement would lead to more case law (there is presently a significant dearth in Canadian s. 45 conspiracy cases that the C.D. Howe group says is, based in part, on the fact that most foreign defendants do not contest Canadian fines) and a skepticism that more economic data or statistical approaches would yield much in terms of increased cartel detection.

I also found it interesting, if perhaps obvious, that the group recognized that regardless of any changes to the Bureau’s existing Immunity and Leniency Programs, the risk of class actions (and greater damages in some cases than any fine reductions available) may in reality be blunting the Bureau’s immunity and leniency self-reporting programs, rendering them ineffective to some extent.

For a copy of the new C.D. Howe report see: Coming in From the Cold: Improving Cartel Detection and Reporting.

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In a very interesting recent development, Bloomberg, Reuters and others are reporting on the first lawsuit filed in the new (well newer) financial product “fixing” case involving credit default swaps (CDS) (see here, here, here, here and here).  CDS are financial instruments intended to protect investors in the event a borrower (e.g., a company, state, etc.) they have invested in default on their payments.  CDS are also used for speculation.

According to media, an Ohio pension fund, the Sheet Metal Workers Local 33 Cleveland District Pension Plan, is seeking damages against Goldman Sachs, Citigroup Inc. and ten other banks that, according to the pension fund, have restrained competition for credit default swaps (CDS) in violation of federal antitrust law.  Other defendant banks include Bank of America, Deutsche Bank, UBS, Morgan Stanley, Barclays, BNP Paribas, Credit Suisse and RBS.  In its complaint, the pension fund states: “The CDS market has been starkly divided between those who control and distort the market and those who, in order to participate in the market, must abide by their distortions”.

More specifically, the complaint (Sheet Metal Workers v. Bank of America Corporation et al) that was filed on May 3^rd  in the Illinois Northern District Court, seeks “buy side” damages incurred in buying or selling CDS contracts to the “sell side” defendant dealers between 2008 and 2011, alleging that the defendants illegally coordinated to limit competition raising fund managers’ costs.  The complaint alleges that CDS prices were “fixed at artificially derived levels” by the banks and that they used their influence on the boards and committees of Markit (an index and data provider), the International Swaps and Derivatives Association (ISDA) and the Depositor Trust & Clearing Corp. (DTCC) to block new market entrant trading platforms keeping the market privately traded (and with wide spreads for buying and selling CDS contracts).

The European Union announced its investigation of the CDS market in April 2011 (see: here), that involves whether 16 investment banks and Markit colluded or abused their dominance to control financial information on CDS, which was expanded in March to include the ISDA (see: here), and in particular whether the ISDA may have been involved in a coordinated effort involving investment banks to delay or prevent exchanges from entering the CDS business.  The EU’s probe appears to include concerted theories of harm as well as collective dominance theories.

Aside from the marquee defendants in the case and size of the market, estimated to be as large as $27 trillion, the case is interesting for showing that regulatory (and private plaintiff) pressure on financial product “fixing” continues to expand with Libor (presumably amplifying headaches for financial regulators attempting to find alternatives).

Perhaps one of the most interesting questions will be whether this case, or any other related cases filed, will survive motions to dismiss and be distinguished from the recent adverse New York District Court finding against Libor plaintiffs (where the New York court found somewhat oddly to say the least, among other things, that banks were not acting as competitors when submitting interest rate information to the BBA).  It will also be interesting to see what arguments are made by the defendant banks (and which may be accepted by the court) in their efforts to fend off this new attack on alleged bank financial instrument coordination.

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As previously announced, the Ontario Government has now introduced for first reading new proposed legislation for wireless contracts and services in Ontario (Bill 60 – An Act to strengthen consumer protection with respect to consumer agreements relating to wireless services accessed from a cellular phone, smart phone or any other similar mobile device).

In making its new announcement yesterday, along with the introduction of the Bill, Ontario’s Ministry of Consumer Services said:

“Ontario is taking steps to strengthen consumer protection by introducing legislation today that would, if passed, make it easier for consumers to understand the costs and terms of their cell phone and wireless services contracts.”

According to the Ministry, the new proposed consumer protection legislation would: limit the costs associated with cancelling a contract; require contracts to be written in plain, easy-to-understand language; ensure that wireless contracts clearly spelled out which services consumers get with a basic fee (and which services would result in a higher bill); and disclose the total price of wireless services in advertising.

This newest proposed provincial wireless code comes at the same time as the ongoing federal wireless code consultations and considerable debate over the future of wireless competition in Canada, which has included criticism of allegedly failed Federal policies to spur more wireless competition in Canada and the expected sale of some of Canada’s smaller wireless carriers.

In addition to consumers’ discontent over wireless services (according to the Ministry, telecom related complaints have more than tripled over the past four years), Ontario’s new proposed rules also reflect some key trends in Canadian advertising law enforcement, including increased pressure for total upfront pricing, services that are subject to additional costs and plain language terms understandable by ordinary consumers.

Some of the contractual rights for consumers Bill 60 proposes include: detailed disclosure of goods and services (and fees) in contracts; plain-language contracts; a consumer’s consent to amend, renew or extend fixed-term contracts; a prohibition on automatic contract renewals for fixed-term agreements; the right to cancel agreements at any time (with cancellation fees capped or no fee, depending on the type of plan); and a ban on charges for services that are not accessible (where devices are being repaired) (for an outline of the proposed contractual rights see: Backgrounder: New Rules for Wireless Contracts and Services).

For copies of the Ministry’s news releases, Backgrounder and proposed legislation (Bill 60) see here, here, here and here.

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A large part of my practice relates to competition/antitrust and advertising law compliance for companies and associations.  In this regard, while the Canadian Competition Bureau has a Corporate Compliance Programs Bulletin that includes an outline of its recommended basic elements for effective competition compliance programs for companies and trade associations, this new International Chamber (ICC) “Antitrust Compliance Toolkit” caught my eye, given that compliance programs can, and typically are, customized for particular business and risk issues.

Launched last week at the 5^th ICC Roundtable on Competition Policy in Warsaw, the ICC’s Toolkit includes chapters on the following 11 topics: compliance imbedded as company culture and policy; compliance organization and resources; risk identification and assessment; antitrust compliance know-how; antitrust concerns-handling systems; handling internal investigations; disciplinary action; antitrust due diligence; compliance certification; compliance incentives; and monitoring and improvement.

For a copy of the Toolkit see: ICC Antitrust Compliance Toolkit.

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The British Columbia Real Estate Council issued its new Report from Council Newsletter, which includes a summary of the new and updated advertising requirements for British Columbia real estate licensees (see: here).  The Council’s new newsletter states:

“Each month, the Real Estate Council receives a large number of complaints relating to licensee advertising.  In order to reduce the number of complaints, the Council has updated its advertising requirements with several pictorial examples, an easy to use Advertising Checklist, and Guidelines for Common Online and Social Media Websites.  A link to the updated advertising requirements can be found here.

The Council’s advertising requirements are intended to ensure the public is neither misled nor confused as to who is providing real estate services and to ensure the accuracy of representations being made about real estate and real estate services.  The Council Rules define real estate advertising as ‘any form of identification, promotion, solicitation or representation relating to real estate, a trade in real estate, or the provision of real estate services, including a sign or other notice relating to real estate, a trade in real estate or the provision of real estate services.’”

I wrote about some of the highlights of the Council’s new requirements when they were first announced (see: here).

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There has been quite a bit of debate recently in Canada about the pros and cons of regulation.  Some of the highlights of this debate have included announcements by the Competition Bureau that it is stepping up its advocacy efforts in certain regulated sectors (e.g., health, wireless, etc.) (see: here), calls by some policy groups (e.g., the CD Howe Institute) to more closely scrutinize anti-competitive restraints insulated by the “regulated conduct doctrine” (see: here) and a vigorous ongoing debate in the wireless sector about the level of appropriate regulation and extent to which Canada’s large three incumbent carriers should be insulated from foreign competition.

In this context, this note in the Edmonton Journal caught my eye discussing an ongoing debate in Alberta about whether to allow or block loyalty programs for drug purchases (e.g., Air Miles, Aeroplan, Optimum points, etc.): Frills for pills tarnish profession, say Edmonton pharmacists who support ban.

According to the Journal, the debate has involved some large retailers on one side (e.g., Safeway, Shoppers Drug Mart, etc.) who support inducements/loyalty programs for drugs, while others oppose the idea based on potential adverse impacts on patient care, pharmacist workload or the image of pharmacists in the province.

I thought this debate was interesting for a few reasons (according to the Journal, the Alberta College of Pharmacists, which regulates pharmacists in Alberta, is planning to move ahead with a prohibition of some kind on inducements for drugs).

The story highlights the fact that advertising restraints (like other types of competition restraints, such as relating to price, output, etc.) can be insulated from competition challenges when they are lodged in valid provincial or federal legislation (based on Canada’s “regulated conduct doctrine”).  As such, this pharmacist marketing debate in Alberta raises the question of whether legislation should be used to remove market forces that would otherwise allow innovation or changes in pharmacists’ marketing.

In this regard, the Competition Bureau has argued at times (for example in its 2007 Self-regulated professions report) that regulatory initiatives that are not subject to direct competition/antitrust enforcement should be reviewed critically through a “competition lens” to consider whether other potential justifications for legislative restrictions on competition are more important than competition and market forces.

Over the years, the Competition Bureau has made a variety of regulatory interventions including in relation to legislated restrictions on discounts and rebates.  For example, in 2006, following representations by the Bureau, the Real Estate Council of Alberta agreed to eliminate rules prohibiting Alberta real estate brokers from offering cash incentives to buyers and to remove restrictions on the payment of referral fees in certain circumstances.

The Bureau has also issued submissions and studies and advocated for legislative changes in relation to the regulation of accountants, dental hygienists, lawyers, optometrists, paralegals, pharmacists and real estate agents, among others (see: here and here).

I also thought that the story raised the question of the legitimacy of some of the argued justifications for a loyalty program ban on drugs (e.g., increased pharmacist workload, “image” of the profession, etc.).  Should legislation and a ban on pharmacist loyalty programs be used, for example, as a justification (or insulation) for some pharmacist models that don’t wish to market their services more vigorously, adapt their businesses to changing market conditions, etc.?

Years ago, lawyers seldom marketed their services much and provincial law societies also routinely imposed advertising restrictions on lawyers.  If lawyers are now “retailers”, should pharmacists or other health professionals be different?

On the other hand, despite the worldview of competition lawyers (sigh), competition and markets are of course not always the only considerations.  In this regard, it will be interesting to see how this anticipated new legislation will develop and whether the “for” or “against” pharmacists will prevail in this advertising regulation tussle in Alberta.

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In an interesting trade association related case that caught my eye today, the Competition Commission of Singapore (CCS) has announced that Singapore’s Competition Appeal Board (CAB) has largely upheld penalties against 11 modeling agencies that had engaged in illegal price-fixing activities relating to the supply of modeling services (see: CAB Dismissed Most Grounds of Appeal by Modelling Agencies).

In this case, in which the accused modeling agencies had attempted to characterize their actions as mere price guidelines issued by a trade association called the “Association of Modelling Industry Professionals”, the Competition Commission found that the AMIP was merely a “front for its individual members to coordinate on, and collectively raise, rates for modeling services in Singapore.”  According to the CCS, the associations’ member modeling agencies had fixed rates for a wide range of modeling related services, which included editorials, advertorials, fashion shows and media loading usage (which adversely impacted publishers, photographers, show organizers, fashion labels and others).

On appeal to the CAB, the modeling agencies made a number of arguments for a reduction in penalty, which were largely dismissed (reducing the original penalty of about $291,000 to about $243,000).

While a technical appeal on the amount of damages not the CCS’ earlier finding of liability, some of the points from the CAB’s decision and case that I found interesting include: the fact that the agencies’ initial discussions on modeling service rates led to the formation of the AMIP as a cover for their price-fixing activities; an initial agreement for commission rates for models that was later expanded into agreed rates for fashion shows, ushering, mingling, fitting and show casting rates, among others; recommendations by association executives for more modest rate increases to reduce the risk of a price-fixing complaint; and an attempted strategy of sending individual price increase letters (and substituting association logos with individual company logos) to avoid detection.

The CAB also described the fact that the association had attempted to reduce risk by using words like “recommended rates” and “guidelines” to characterize and describe their collective rate related activities.

This case is a reminder of the potential risks to associations that become involved in competitively sensitive aspects of their members business activities, particularly rates, markets/customers, business models and output.  This case is also something of a cautionary tale of the ease with which merely “suggested” or “voluntary” fee or tariff guidelines may drift, factually, into areas that may more easily trigger the Competition Act’s price-fixing offence (and the fact that mere labels or descriptions of anti-competitive conduct may be insufficient to avoid violating the Competition Act).

In Canada, while the Competition Bureau has on occasion expressly said that purely voluntary fees schedules may be adopted without contravening the Competition Act, the line between a purely voluntary fee tariff and a price-fixing agreement is not clear and very much a matter of fact.  Some of the key factors that have been relevant in making the distinction have included clear statements that a fee tariff or schedule is merely for “informational purposes”, making it clear that members are not obligated to follow any suggested rates, and an absence of enforcement (e.g., statements by an association that members will not be disciplined or disadvantaged for not adhering to a suggested tariff, and no enforcement in fact).

Having said that, voluntary/suggested fee guidelines have been a source of unease for the Bureau, is a very factual area and any suggested or recommended pricing by association must be managed with care so as not to attract criminal liability under Canada’s Competition Act.

In the words of one former Canadian Director of Investigation and Research: “[s]trictly speaking, it is possible to implement a suggested fee schedule which raises no issue under the [Competition Act].  However … risk arises because of the ease with which such a schedule may be used to establish or facilitate an agreement on prices or promote adherence to a specified level of fees.”

For more on Canadian competition law and trade associations and Canada’s criminal conspiracy rules see: Associations and Competition Law and Canada’s Criminal Conspiracy Law.

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