Archive for the 'Competition Bureau' Category
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 13, 2012
The Canadian Corporate Counsel Association recently published a new article on Canada’s impending (but when?) new anti-spam legislation, entitled Canada’s Anti-spam Law: Filtering Relationships (by Yves Faguy).
Advertising Standards Canada will be holding two upcoming workshops on the basics of Canadian food related advertising regulations in Montreal (September 19th) and Toronto (September 25th). These two hour workshops will address common questions relating to Canadian food advertising related regulations, including how to compare foods, “common names”, how to claim that products are “fresh” / “natural” or “healthy”, nutrient content claims and health claims.
For more information see: The ABC’s of Food Advertising Regulations.
In a recent decision, the Federal Court of Appeal granted a stay of the Competition Tribunal’s May 29, 2012 decision in the contested CCS merger case Commissioner of Competition v. CCS Corporation.
This decision relates to a recent contested BC landfill merger, in which CCS Corporation acquired Complete Environmental Inc. and its wholly-owned subsidiary Babkirk Land Services (the first contested merger case in Canada in six years, an uncommon example of a “prevent” merger case under the Competition Act and a non-notifiable merger challenged by the Competition Bureau).
As a result of the Tribunal’s May decision, following a challenge of the merger by the Bureau, CCS Corporation (now Tervita Corporation) had been subject to a Tribunal order to divest the shares or assets of acquired Babkirk before the end of the year, after which a trustee was to be appointed to effect the sale. The Tribunal had also issued a related Divestiture Procedure Order in July, setting out the terms for the divestiture process (see: Divestiture Procedure Order).
In this regard, the Tribunal partially granted the Commissioner of Competition’s application accepting that the transaction would likely prevent competition substantially in the relevant secure landfill services market in Northern BC, though ordered divestiture rather than dissolution (see: Competition Tribunal Releases Decision in BC Landfill “Prevent” Merger Case and Commissioner of Competition v. CCS Corporation).
The stay of the Tribunal’s decision now granted by the Federal Court will apply until the final determination of the appeal. In granting a stay, the Court applied the test in RJR – MacDonald Inc. v. Canada (A.G.), [1994] 1 S.C.R. (S.C.C.), in which the Supreme Court set out a three-part test (serious issue, irreparable harm and balance of convenience).
On September 11, 2012, the Competition Bureau announced that it had laid charges against Progressive Waste Solutions Ltd. and its subsidiary, BFI Canada Inc. for allegations of breaches of a consent agreement following the merger in 2012 of IESI-BFC Ltd. and Waste Services Inc.
In making the announcement, the Bureau said:
“’Today’s announcement sends a strong signal to businesses that breaching a Consent Agreement with the Competition Bureau is an extremely serious matter and will not be tolerated’, said Melanie Aitken, Commissioner of Competition. ‘Consent Agreements are an essential tool to preserve competition and protect consumers from potential anti-competitive harm. Companies who violate the terms of such agreements must be held to account.’”
This announcement is another indication both of the Bureau’s more aggressive enforcement of the Competition Act generally and signals the Bureau’s ongoing appetite to take steps to ensure that settlement agreements under the Act are complied with. In this regard, this case is the third recently announced case in which the Bureau has commenced enforcement steps, including criminal enforcement, relating to alleged breaches of consent agreements (see also: Bureau Seeks Criminal Penalties in Alleged Misleading Advertising and Breach of Consent Agreement Case and Commissioner of Competition Speech Highlights Enhanced Competition Bureau Enforcement).
This case also appears to indicate that the Bureau is making good on its commitments to both monitor the marketplace generally for conduct that potentially violates the Competition Act and for potential violations of consent agreements negotiated with parties in misleading advertising, merger and other cases.
For example in one recent speech, the Commissioner said that the Bureau will “continue to be vigilant in monitoring consent agreements” and would not “hesitate to take further enforcement action as warranted”. Bureau personnel have also indicated in other recent public remarks that they continue to periodically monitor online advertising and marketing for Competition Act compliance and business media for mergers that, while not notifiable, may raise competition concerns.
Despite an effort by the Toronto Real Estate Board (“TREB”) several weeks back to launch a constitutional challenge, it appears that Canada’s first contested abuse of dominance case to go before the Competition Tribunal in five years (since the Canada Pipe case, proceedings for which went on from 2005 to 2007) is set to go ahead with hearings scheduled next week in Toronto.
In this highly anticipated case, scheduled to be heard from September 10th to October 8th, the Bureau is challenging membership rules enacted by TREB, Canada’s largest real estate board, which it says have substantially lessened competition in the residential real estate services market in the Greater Toronto Area (“GTA”).
In particular, the Bureau is alleging that TREB is dominant in the residential real estate services market in the GTA, has engaged in a practice of anti-competitive acts (that it has enacted and enforced membership rules governing the use of its MLS® data that make it impossible for members to offer certain types of services over the Internet), which has prevented or lessened competition substantially in residential real estate services. In this regard, the Bureau’s burden will be to establish all of the elements for abuse of dominance under section 79 of the Competition Act: dominance (which involves defining the relevant market(s) and showing market power); a practice of anti-competitive acts (some of which are listed in section 78 of the Act, while others have been established by the Tribunal in dominance case law since 1986); and that the conduct has prevented or lessened competition substantially.
The thrust of the dispute largely turns on whether TREB’s control of the MLS® data generated by its MLS® system is anti-competitive (all real estate boards in Canada administer member-driven and fed MLS® systems, which are rich sources of real estate related transaction data, which is largely, but not exclusively, available only to members; in Canada’s MLS systems, there is public and member only data).
Like its earlier abuse of dominance challenge against The Canadian Real Estate Association (“CREA”), which was settled in the fall of 2010, the Bureau’s challenge focuses on TREB’s ability to exclude and discipline non-compliant members by foreclosing access to its MLS® system. In this regard, the Bureau has alleged that TREB has used this ability to restrict and prevent brokers from offering innovative services, such as giving customers access to a “virtual office website” (“VOWs”) which would allow prospective clients to do their own property searches on a broker’s password protected website without the assistance or direct intervention of the broker. The national association for organized real estate in Canada (CREA) established rules and procedures for member real estate agents to operate such virtual office websites some years ago, and many (if not most) real estate boards in Canada permit the operation of VOWS.
In an interesting recent decision by the Ontario Superior Court, the Court refused to allow defendants in a conspiracy action to strike plaintiffs’ claims on the basis of the regulated conduct defence (“RCD”) merely because the industry was regulated.
In Fournier Leasing Co. v. Mercedes-Benz Canada Inc., 2012 CarswellOnt 6068 (Ont. Sup. Ct.), plaintiff auto importers alleged that Mercedes-Benz Canada Inc., Mercedes-Benz USA LLC and BMW Canada Inc. had, among other things, conspired with their dealers in relation to the regulation for the importation of Mercedes and BMW cars into Canada. In particular, the plaintiffs alleged that Mercedes and BMW conspired with their respective dealers to pressure Transport Canada to make certain changes to its admissibility requirements for vehicles imported into Canada, including requirements for Mercedes and BMW to provide admissibility and recall information that could be withheld until importers paid Mercedes and BMW fees for the information and unnecessary vehicle modifications.
According to the Court, these changes to Transport Canada’s admissibility list “gave Mercedes and BMW the ability to deny entry into Canada of vehicles that could properly be imported through [Transport Canada’s program] unless importers paid fees and charges to [Mercedes/BMW] for unnecessary certifications and vehicle modifications … [and] BMW and Mercedes withheld letters of admissibility unless the unnecessary modifications were completed and fees were paid to them by importers.” BMW and Mercedes also charged a standard fee to issue a letter of admissibility.
The thrust of the dispute appears to be allegations by the plaintiff importers that the two auto manufacturers together with their dealers conspired to force importers to pay unnecessary costs imposed as a result to regulatory changes introduced by Transport Canada, based on an apparent concern of lost revenues arising from cheaper Mercedes and BMW cars from the U.S. – which were in some instances as much as 35% lower in price.
Some of the arguments being made by the plaintiff importers include allegations that Mercedes and BMW and their dealers conspired to fix prices for modifications and certifications for importation of Mercedes, BMW and Mini vehicles and allocated the market for modifications for the importation of certain vehicles. The plaintiffs in this case also allege theories of harm based on tort and equitable grounds, including civil conspiracy, interference with economic relations, unjust enrichment, waiver of tort and breaches of consumer protection legislation.
In bringing a motion to strike the plaintiffs’ claims for a failure to disclose a cause of action, the defendants argued, among other things, that the conduct in question was immune from Competition Act liability based on the application of the RCD. The RCD, which has now been partially codified in subsection 45(7) of the Competition Act as a result of 2009 amendments to the Act, is the Canadian equivalent of the U.S. state action immunity doctrine. When met, it offers a form of immunity from enforcement under the Competition Act for legislatively authorized or mandated conduct. As such, the RCD can operate as a defence (though it has also sometimes been characterized as an exception) to some types of activities that would otherwise be subject to the Competition Act.
CANADIAN CONTEST RULES/PRECEDENTS
Do you need contest rules/precedents
for a Canadian contest?
We offer many types of Canadian contest/sweepstakes law precedents and forms (i.e., Canadian contest/sweepstakes law precedents to run common types of contests in Canada). These include precedents for random draw contests (i.e., where winners are chosen by random draw), skill contests (e.g., essay, photo or other types of contests where entrants submit content that is judged to enter the contest or for additional entries), trip contests and more. Also available are individual Canadian contest/sweepstakes precedents, including short rules (“mini-rules”), long rules, winner releases and a Canadian contest law checklist. For more information or to order, see: Canadian Contest Law Forms/Precedents. If you would like to discuss legal advice in relation to your contest or other promotion, contact us: Contact.
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In my inbox this morning was a newsletter with what I thought was a rather good note by Dale Joerling (Thompson Coburn LLP – St. Louis) on avoiding issues when running a sweepstakes in the U.S.
CANADIAN CONTEST RULES/PRECEDENTS
Do you need contest rules/precedents
for a Canadian contest?
We offer many types of Canadian contest/sweepstakes law precedents and forms (i.e., Canadian contest/sweepstakes law precedents to run common types of contests in Canada). These include precedents for random draw contests (i.e., where winners are chosen by random draw), skill contests (e.g., essay, photo or other types of contests where entrants submit content that is judged to enter the contest or for additional entries), trip contests and more. Also available are individual Canadian contest/sweepstakes precedents, including short rules (“mini-rules”), long rules, winner releases and a Canadian contest law checklist. For more information or to order, see: Canadian Contest Law Forms/Precedents. If you would like to discuss legal advice in relation to your contest or other promotion, contact us: Contact.
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I am in the habit of doing a daily media sweep for Canadian regulatory law developments. Yesterday, a few contests being run by Canadian companies caught my eye, one, involving social media related follows and blog comments by entrants for a chance to win a prize, unfortunately for lacking many of the key elements for a Canadian contest.
Templates/precedents and checklists to run promotional contests in Canada
Templates/precedents and checklists to comply with Canadian anti-spam law (CASL)
