I offer a wide range of strategic and efficient competition/antitrust law, compliance, education and policy services for companies, associations, individuals and government agencies. I offer competition and foreign investment law services in relation to the merger, conspiracy (cartel), bid-rigging, abuse of dominance (monopoly), misleading advertising, promotional contest, deceptive marketing, price maintenance and other provisions of the Competition Act and Investment Canada Act.
“Price maintenance may occur when a supplier prevents a customer from selling a product below a minimum price by means of a threat, promise or agreement. It may also occur when a supplier refuses to supply a customer or otherwise discriminates against them because of their low pricing policy.”
(Competition Bureau, pamphlet, Setting Your Own Price)
OVERVIEW OF COMPETITION ACT
PRICE MAINTENANCE PROVISIONS
The Competition Act contains several civil price maintenance provisions that, generally speaking, allow the Competition Bureau (or private parties in some instances with leave from the Tribunal) to seek Competition Tribunal remedies where: a supplier has influenced a customer (or reseller) to increase its prices; there has been a refusal to deal (or discrimination) based on low pricing policy; or a supplier has been induced to refuse to supply based on a person’s low pricing policy.
In particular, under section 76 of the Competition Act, the following are “reviewable practices” (i.e., civil matters) subject to remedial orders by the Competition Tribunal:
1. For a supplier of goods or services to influence a customer, or another person to whom a product comes for resale, to raise its prices (or discourage the reduction of prices) and competition is adversely affected;
2. To refuse to supply goods or services to a person, or otherwise discriminate against them, based on their low pricing policy and competition is adversely affected; or
3. To induce a supplier, as a condition to dealing with the supplier, to refuse to supply a product to another person because of that other person’s low pricing policy and competition is adversely affected.
Before the Competition Act was amended in 2009, price maintenance was a “per se” criminal offence (i.e., no market effects were needed to be proven), subject to criminal fines and imprisonment.
Price maintenance is now, however, following the 2009 amendments to the Act a civil reviewable practice with a market effects test, under which the Competition Tribunal may make remedial orders based on applications by the Commissioner of Competition or private parties granted leave by the Tribunal.
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