Archive for November, 2011
On November 10, 2011 the C.D. Howe Institute issued a report reviewing the Competition Bureau’s (the “Bureau”) enforcement of the criminal conspiracy offences of the Competition Act, its enforcement in relation to strategic alliances and policies regarding the issuance of binding advisory opinions.
The C.D. Howe Institute’s Competition Policy Council (the “Competition Council”), which held its second meeting on November 3, 2011 and provides “analysis of emerging competition policy issues, including those potentially faced by the federal Competition Bureau”, addressed the following questions:
1. How can competition policy legislation and enforcement discourage truly anti-competitive agreements without discouraging healthy cooperation?
2. What guidance should the Bureau provide to better define when a [competitor-competitor] agreement is likely to be subject to criminal prosecution?
3. Are severe potential criminal sanctions for competitor agreements warranted?
The National Centre for Business Law will be hosting its 5th NCBL Annual General Meeting and Reception with guest speaker Melanie Aitken, Commissioner of Competition on November 30, 2011 at the Four Seasons Hotel, Seasons Room, 791 West Georgia Street in Vancouver from 5:30 – 7:30 p.m.
For more information and registration details see:
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On November 2, 2011, Madam Justice Simpson of the federal Competition Tribunal (the “Tribunal”) granted leave to Realtysellers (“RS”) and The Canadian Real Estate Association (“CREA”) to intervene in the Toronto Real Estate Board (“TREB”) abuse of dominance case.
Following the Tribunal’s decision, CREA’s President Gary Morse said:
“We are pleased that the Tribunal is willing to hear our position in this matter and look forward to contributing to the Tribunal on important issues that will affect not only TREB and its members, but will also have broader implications for other Boards and Associations … The important issues under discussion may lead to a Tribunal Order affecting data sharing over the Internet which directly affects the interests of all CREA members … It is important for us, and our members, to be at the table and part of this discussion.”
CREA and RS both moved for leave to intervene in the TREB abuse of dominance case on October 18, 2011.
Abuse of Dominance
To establish abuse of dominance under the Competition Act, which is one of the Act’s civil “reviewable matters”, the Commissioner of Competition must establish: (i) that a firm (or firms) is dominant (possesses market power in a relevant market), (ii) the firm has engaged in a practice of anti-competitive acts and (iii) the practice has had, is having or is likely to have the effect of preventing or lessening competition substantially.
The Competition Bureau (the “Bureau”) commenced its case against TREB in May 2011, arguing that TREB was using its control of the MLS System to pass rules and policies restricting brokers access to and use of TREB’s MLS System. In particular, the Bureau has taken the position that certain TREB rules regarding the use of its MLS data prevents brokers from using “virtual office websites” (secure, password protected “VOWs” to provide real estate brokerage services to their customers over the Internet).
With respect to the necessary elements to establish abuse of dominance, the Bureau is arguing that TREB is dominant (in the residential real estate services market in the Greater Toronto area), that is has engaged in a practice of anti-competitive acts (rules governing the use of its MLS data) and that its conduct has resulted in a substantial prevention or lessening of competition.
CREA’s and Realtysellers’ Intervenor Applications
The Competition Tribunal Act provides that any person may intervene in Tribunal proceedings with leave from the Tribunal, which has held that applicants for intervenor status must meet the following elements: (i) they are directly affected, (ii) the matter is legitimately within the scope of the Tribunal’s consideration (or sufficiently relevant to its mandate), (iii) the intervenor’s representations are relevant to an issue raised by the Commissioner and (iv) the intervenor will bring a unique or distinct perspective to the proceedings.
CREA sought leave to intervene to deal with, among other things, relevant market definition (product and market definition), the use and competitive impact of VOWs (and other data-sharing vehicles in Canada) and the impacts of potential remedies on CREA and its members (including on its MLS and other trademarks).
Madam Justice Simpson granted CREA leave to intervene with respect to: (i) the use and competitive impact of other (i.e., non-VOW) Internet data-sharing vehicles in Canada, (ii) the appropriate terms of use/conditions to be included in rules to implement non-VOW Internet data-sharing vehicles and (iii) the impact of proposed remedies on CREA and its members (including on its MLS and other trademarks). With respect to process, the Tribunal granted CREA leave to intervene to review discovery transcripts and productions, call two fact or expert witnesses, cross-examine the Commissioner’s witnesses, participate in pre-hearing proceedings and make oral and written submissions.
The Tribunal also granted RS leave to intervene with respect to: (i) the cost savings and operational efficiencies of operating a virtual office (and the savings that can be passed on to consumers), (ii) the impact of TREB’s current rules and policies (including its recent VOW policy) on non-traditional brokerages that want to supply MLS information to consumers through a virtual office and (iii) the proposed order and impact it may have on non-traditional brokerages that want to provide consumers with MLS information through virtual offices.
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For more information about our regulatory law services contact us: contact
For more regulatory law updates follow us on Twitter: @CanadaAttorney
November 1, 2011
We are pleased to announce the upcoming online webinar offered by Carswell and West in conjunction with the forthcoming publication of The Competition Law Guide for Trade Associations in Canada, jointly authored by Steve Szentesi and Mark Katz.
Templates/precedents and checklists to run promotional contests in Canada
Templates/precedents and checklists to comply with Canadian anti-spam law (CASL)
