Archive for the 'Amendments' Category
November 20, 2012
Earlier today, the Canadian Department of Justice announced that the final provisions of its omnibus crime bill, the Federal Safe Streets and Communities Act, eliminating conditional sentences for some serious crimes have come into force. In making the announcement, Canada’s Federal Attorney General said:
“’Our Government has a strong record of putting victims first, getting tough on serious and violent offenders, and keeping our streets and communities safe’ … ‘House arrest should not be available for offenders of serious crimes like sexual assault, kidnapping, and human trafficking. Those who commit these violent crimes must serve their time behind bars, not in the comfort of their homes and that is exactly the issue this legislation corrects.’”
On March 13, 2012, amendments to section 742.1 of the Criminal Code (the “Code”), which were part of the Federal Government’s omnibus crime bill (Bill C-10), received Royal Assent. The changes also restrict the availability of conditional sentences for some Competition Act offences.
In particular, where a person is convicted of an offence and a court imposes a sentence of less than two years, the court may impose a conditional sentence (i.e., served in the community), except in certain circumstances. These now include where an offence is an indictable offence with a maximum term of imprisonment of 14 years or life, which includes sections 45 and 47 of the Competition Act (conspiracy agreements and bid-rigging), as well as manslaughter, aggravated assault, arson and fraud over $5,000.
Other offences for which conditional sentences will not be available also include the following offences when prosecuted by indictment: prison breach, criminal harassment, sexual assault, kidnapping, human trafficking, theft over $5,000 and motor vehicle theft.
November 9, 2012
I am attaching below a copy of our PowerPoint presentation from the recent Canadian Society of Association Executives’ (CSAE) 2012 National Conference & Showcase, held in Ottawa last week. Our presentation focused on competition law and compliance for trade and professional associations, including in relation to key association activities (e.g., fee schedules and compensation, data collection and information exchanges, association membership). Also included are a number of association related case studies: Competition Law and Associations in Canada.
In the most noteworthy Canadian competition/antitrust law development today, the Competition Bureau announced that a settlement (consent agreement) had been reached in this case, one of two contested mergers in the past few years in Canada (together with the recent CCS hazardous landfill case which was recently decided by the Competition Tribunal and is currently on appeal).
This case, which was to scheduled to be heard in early November before the Competition Tribunal (see: here and here) was noteworthy for being one of only two contested mergers currently underway in Canada and for representing the first challenge, if it had proceeded, of agreements (in this case joint venture agreements between Air Canada and Continental) under Canada’s recently enacted civil agreements provision of the Competition Act (section 90.1 – which, together with section 45, comprises Canada’s new two-track conspiracy/cartel regime).
The Bureau had been challenging three existing Air Canada / Continental “coordination agreements” under section 90.1 of the Competition Act, under which the Bureau can apply to the Competition Tribunal for remedial orders where agreements between competitors prevent or lessen (or are likely to prevent or lessen) competition substantially in one or more relevant markets.
There has not yet been a contested section 90.1 case since this new “civil agreements” provision came into force (which is thought may apply to a range of commercial agreements that, while they may not constitute “hard core” cartel type agreements under section 45 of the Act – i.e., price-fixing, market division/allocation and output restriction agreements – may nevertheless prevent or lessen competition substantially in some cases).
While it is thought that the new section 90.1 may apply, in some instances, to joint venture, franchise, licensing, information exchange and research and development agreements, among others, where competition is substantially impacted, the boundaries of section 90.1 now remain as yet unknown and untested.
CANADIAN CASL (ANTI-SPAM LAW) PRECEDENTS
Do you need a precedent or checklist
to comply with CASL (Canadian anti-spam law)?
We offer Canadian anti-spam law (CASL) precedents and checklists to help electronic marketers comply with CASL. These include checklists and precedents for express consent requests (including on behalf of third parties), sender identification information, unsubscribe mechanisms, business related exemptions and types of implied consent and documenting consent and scrubbing distribution lists. We also offer a CASL corporate compliance program. For more information or to order, see: Anti-Spam (CASL) Precedents/Forms. If you would like to discuss CASL legal advice or for other advertising or marketing in Canada, including contests/sweepstakes, contact us: contact.
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October 10, 2012
On October 10, 2012, the Canadian Radio-television and Telecommunications Commission (the “CRTC”) issued new guidelines on Canada’s anti-spam legislation (the Guidelines on the interpretation of the Electronic Commerce Protection Regulations (CRTC) (“Interpretation Guidelines”) and Guidelines on the use of toggling as a means of obtaining express consent under Canada’s anti-spam legislation) (“Toggling Guidelines”). These are the first of a series of CRTC guidelines to be issued to facilitate compliance with Canada’s upcoming anti-spam legislation.
The National Competition Law Section of the Canadian Bar Association has published a new issue of its Competition Law Review (which is now also available in a searchable format online).
This new issue includes articles on The Competition Act of 1986, Competitor Agreements: Interpreting Criminal Conspiracy in a Blended Criminal-Civil Regime, Section 36 of the Competition Act, Abuse of Dominance in Canada: Reflections on 25 Years of Section 79 Enforcement, The Treatment of Vertical Price Restraints under the Competition Act, The Evolution of Vertical Distribution Practices under the Competition Act, 25 Years of Merger Review in Canada, The Evolution of Canada’s Pre-Merger Notification Regime (1986-2012), Foreign Investment Screening under Canada’s Investment Canada Act, Misleading Advertising and Deceptive Marketing Practices under the Federal Competition Act, A Quarter Century of the Competition Tribunal and Economics and Canadian Competition Policy.
From the CBA:
“Volume 25, Issue 2 is a special edition devoted to a retrospective on 25+ years of the Competition Act and the Investment Canada Act. Leading members of the bar, including four former Commissioners, have authored high quality papers taking an in-depth look at the substantive and procedural development of those statutes. We trust that you will find them informative, thought-provoking and enjoyable.”
For a copy see: Canadian Competition Law Review (Fall 2012)
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“Price-fixing agreements, like other forms of hard core cartel agreements, are analogous to fraud and theft. They represent nothing less than an assault on our open market economy. Buyers in free market societies are entitled to assume that the prices of the goods and services they purchase have been determined by the forces of competition. When they purchase products that have been the subject of such an agreement, they are effectively defrauded.”
(Chief Justice Crampton, R. v. Maxzone Auto Parts
(Canada) Corp., 2012 FC 1117)
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In detailed though critical reasons issued this week by the Federal Court in the auto parts price-fixing case, Chief Justice Crampton set the stage for the Court’s approach to joint sentencing submissions for future Canadian cartel cases (R. v. Maxzone Auto Parts (Canada) Corp., 2012 FC 1117).
Crampton C.J.’s reasons relate specifically to his (reluctant) decision last Spring to accept joint sentencing submissions and impose a fine of $1.5 million on Maxzone Canada for its role in the ongoing global aftermarket auto parts price-fixing investigation.
In this regard, on May 3, 2012, Maxzone Auto Parts (Canada) Corp. pleaded guilty under Canadian competition law to one count of contravening Canada’s foreign directed conspiracy offence under section 46 of the Competition Act. Chief Justice Crampton’s reasons also set out what the Court expects from future sentencing submissions.
Some of the key (if related) points from this interesting recent decision include:
Mathematical approach to sentencing. First, parties making sentencing submissions must do more than adopt the mathematical approach to fines set out in the Competition Bureau’s Leniency Bulletin (the “Leniency Bulletin”). The Leniency Bulletin sets out 20% of a cartel participant’s affected volume of commerce in Canada as a starting point for negotiations, which may be reduced by 50% for the first party that complies with all requirements of the Bureau’s Program.
The Bureau’s Leniency Bulletin can be an appropriate framework. Second, while the Bureau’s Leniency Bulletin can be an appropriate framework for sentencing submissions, it must be followed in both “letter and spirit” with regard to: (i) the fundamental purpose of sentencing and objectives set out in section 718 of the Criminal Code (the “Code”); (ii) the principal of proportionality in section 718.1; (iii) aggravating and mitigating factors in sections 718.2 and 718.21 (and related case law); and (iv) the other principles in section 718.2 (and case law). In this regard, Crampton C.J. held that “cooperation [under the Bureau’s Leniency Program] cannot so dominate the approach to sentencing as to leave virtually no meaningful role for relevant aggravating factors, other mitigating factors, and the principles of sentencing [under the Code].”
More detailed evidentiary records and submissions will be required. Third, the court held that significantly more fulsome evidentiary records and more detailed submissions would be required for the Court to be satisfied that a recommended sentence would not be contrary to the public interest or bring the administration of justice into disrepute.
The Competition Bureau has updated its organizational chart with John Pecman (formerly head of the Criminal Matters Branch) as Acting Commissioner of Competition. From the Bureau:
“John Pecman is Acting Commissioner of Competition.
The Commissioner is responsible for the administration and enforcement of the Competition Act and three labelling statutes, the Consumer Packaging and Labelling Act, the Precious Metals Marking Act and the Textile Labelling Act.
Under the Competition Act, the Commissioner can launch inquiries, challenge civil and merger matters before the Competition Tribunal, make recommendations on criminal matters to the Director of Public Prosecutions of Canada (DPP), and intervene as a competition advocate before federal and provincial bodies.
As head of the Canadian Competition Bureau, the Commissioner leads the Bureau’s participation in international fora such as the Organization for Economic Cooperation and Development (OECD) and the International Competition Network (ICN), to develop and promote coordinated competition laws and policies in an increasingly globalized marketplace.
CANADIAN CASL (ANTI-SPAM LAW) PRECEDENTS
Do you need a precedent or checklist
to comply with CASL (Canadian anti-spam law)?
We offer Canadian anti-spam law (CASL) precedents and checklists to help electronic marketers comply with CASL. These include checklists and precedents for express consent requests (including on behalf of third parties), sender identification information, unsubscribe mechanisms, business related exemptions and types of implied consent and documenting consent and scrubbing distribution lists. We also offer a CASL corporate compliance program. For more information or to order, see: Anti-Spam (CASL) Precedents/Forms. If you would like to discuss CASL legal advice or for other advertising or marketing in Canada, including contests/sweepstakes, contact us: contact.
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September 23, 2012
I’ve been seeing an increasing flutter of updates and newsletters recently discussing the status of Canada’s new (though still unclear when) anti-spam legislation (“CASL”). So I thought I would have a poke around the web, see what Industry Canada, the CRTC, the Competition Bureau and Privacy Commissioner’s office have been up to lately and post a few thoughts on the progress of the new law that is inching along, some recent developments and practical steps that can be taken before the law is in force.
Templates/precedents and checklists to run promotional contests in Canada
Templates/precedents and checklists to comply with Canadian anti-spam law (CASL)
