Archive for the 'News' Category
November 13, 2012
Earlier today, the CRTC announced that it has launched its online discussion for consultations for the new consumer wireless code of conduct. In making the announcement, the CRTC’s Chairman Jean-Pierre Blais said:
“’We encourage Canadians to join the online discussion and have their say on how wireless contracts could be clearer and easier to understand. … By sharing their views, Canadians can help us shape a clear list of terms and conditions that wireless companies will need to include in their contracts.’ The CRTC recently examined the wireless market and found that contracts were a source of significant concern for many Canadians. Once completed, the code will help Canadians better understand their rights and their wireless company’s responsibilities, and allow them to make informed decisions in a competitive marketplace.”
The CRTC’s new online discussion, which will be open until December 4th, will allow Canadians to give their views on what they think should be in the new mandatory wireless code, how wireless related complaints should be resolved and promotion and enforcement of the code.
The CRTC first announced that it was launching new public consultations for a mandatory wireless code of conduct on October 11th (see: here and here) to formulate guidelines for wireless contracts and reduce potential misleading advertising related issues.
In its initial announcement in early October, the CRTC set out the following general elements it is considering addressing in the new wireless code: clarity of contract terms and conditions; changes to contract terms and conditions; contract cancellation, expiration and renewal; clarity of advertised prices; application of the code to bundles of telecommunications services; notification of additional fees; privacy policies; hardware warranties and related issues; loss or theft of hardware; security deposits; and disconnections.
This online discussion will be followed by another in early 2013 (from January 28 to February 1, 2013).
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November 13, 2012
Given the ongoing testimony at the Charbonneau Commission in Montreal, which has included allegations of bid-rigging among Quebec construction firms, I thought I would post a short overview of bid-rigging under the Competition Act – a sort of “bid-rigging 101” list of FAQs. While much of this will likely be intuitive to most, Canadian bid-rigging law has a number of interesting aspects (and, like criminal cartels, can be very difficult for tendering authorities to detect).
What is bid rigging?
Unlike some jurisdictions, notably the U.S., Canada has a standalone bid-rigging offence, or to be more accurate related offences. Under section 47 of the federal Competition Act it is a criminal offence to:
1. Agree to not submit a bid or tender;
2. Agree to withdraw a bid or tender already made (an offence recently added to the Competition Act as a result of amendments in 2009); or
3. Submit a bid or tender arrived at by agreement.
In essence, the Competition Act prohibits most types of agreements or arrangements between competing bidders or tenderers (though there is one key exception).
Is it necessary to prove
anti-competitive effects on a market?
No. In Canada bid-rigging is referred to as a ”per se” offence, in that no anti-competitive effects need to be proven to make out an offence – in other words, the offence lies in the agreement to not submit a bid, withdraw a bid already made or submit bids arrived at by agreement.
Like the other criminal offences in the Competition Act, however, and criminal offences generally in Canada, it is necessary to prove all elements under section 47 on the criminal burden of proof (i.e., beyond a reasonable doubt).
What are some common types of bid-rigging
(i.e., ways parties attempt to avoid detection)?
Like criminal cartel (i.e., conspiracy) agreements, bid-rigging agreements are often structured in a handful of key ways to avoid detection. These include:
1. “Cover”, “courtesy” or “complementary” bidding: Some firms submit bids that are too high to be accepted (or with terms that are unacceptable to the tendering authority) to protect an agreed upon low bidder.
2. Bid suppression: One or more bidders that would otherwise bid or tender agree to refrain from bidding (or withdraw a previously made bid).
3. Bid rotation: All parties submit bids but take turns being the low bidder according to a systematic or rotating basis.
4. Market division: Suppliers agree not to compete in designated geographic areas or for specified customers.
5. Subcontracting: Parties that agree not to submit a bid (or submit a losing bid) are awarded subcontracts or supply agreements from the successful low bidder.
The above types of bid-rigging arrangements are typically intended to achieve several goals, including keeping the bid-rigging arrangement secret and dividing contracts/markets among the parties.
What must be proven to establish
an illegal bid-rigging agreement?
To establish an illegal bid-rigging agreement under section 47 of the Competition Act, all of the following elements must be established:
1. An agreement or arrangement between two or more persons (or bidders or tenderers as the case may be).
Like section 45 of the Competition Act (criminal conspiracy agreements), an agreement is an essential element to establish a bid-rigging offence under section 47. Also like the criminal conspiracy provisions, Canadian courts have held this element to require a “consensus of minds” or “mutual understanding” between the parties.
Mere consultations between parties bidding in relation to pricing, where there has been no agreement or arrangement between the parties and their respective bids are not communicated to the other before tenders are submitted, has been held not to contravene section 47.
November 12, 2012
The Antitrust Law Section of the American Bar Association has published a new issue of its Antitrust Law Journal that includes contributions on the U.S. Supreme Court’s new approach to implied antitrust immunity; antitrust and innovation; antitrust, innovation and product design in platform markets; the Google books settlement; and the rule of reason and goals of antitrust. For a copy of the new issue see: Antitrust Law Journal.
November 11, 2012
In an interesting note earlier today, the National Post reported (from The Canadian Press) that the federal Competition Bureau was working with Quebec’s corruption unit in the ongoing Quebec corruption and competition investigation which has so far led to the resignations of the mayors of Montreal and Laval and involved testimony that working in this area for some years now I can only describe as astonishing.
The articles published earlier today confirmed that the Bureau is working with Quebec’s provincial anti-corruption authorities in relation to a number of cartel and bid-rigging cases under investigation in Quebec (which was also recently confirmed by the Acting Senior Deputy Commissioner of Competition, Criminal Matters Branch, Matthew Boswell in recent remarks, including the fact that Bureau officers have been included in recent dawn raids in Quebec – see: here).
According to the Post’s reporting, the Competition Bureau, in addition to cooperating in searches, is “keeping tabs” on the ongoing Charbonneau inquiry, where testifying witnesses have made criminal and competition law allegations in relation to a wide range of conduct that includes bribery of public officials, illegal political campaign contributions and competition law violations, including criminal bid-rigging and conspiracy under sections 47 and 45 of the Competition Act. The Post also cites correspondence with the Bureau stating that criminal bid-rigging remains an enforcement priority for the Bureau.
While the Bureau’s enforcement powers include the ability to obtain court orders for search warrants and wiretaps, and uses enforcement partnerships as part of its efforts to detect and investigate Competition Act offences, it may be some time yet until any charges or laid or formal Bureau announcements are made given the relatively slower pace of criminal matters under the Act. For example, developments (e.g., pleas) and announcements are still being made in the Quebec’s Quebec gas price fixing investigation, which first began about five years ago.
November 10, 2012
Derek Ireland (djirel@sympatico.ca) has recently presented a new paper to the Canada Law and Economics Association entitled “Behavioural Economics and Competition Policy and Law in Emerging Market Economies”. Abstract:
“The literature on how behavioral economics should be applied to competition policy and law in the more advanced OECD economies has expanded greatly over the last ten years. However, behavioral economics and antitrust have to date not addressed the obvious relevance of these behavioral insights for the design and enforcement of competition policies and laws in the more than 80 emerging market economies that in the past 20 years have established new or more modern competition policies, laws and authorities. The purpose of this working paper and our research program is to make a modest start to filling this research gap.
The major argument of this working paper is that selective application of the insights from the behavioral, information and related literatures will improve the analysis and decisions of emerging economy competition authorities, reduce the risk of Type I errors/false positives (e.g. blocking a good merger) and Type II errors/false negatives (e.g. clearing a bad merger), and enhance the competence, credibility and visibility of new, recently established and other competition authorities in emerging economies.
One of the guiding principles from the research is that behavioral economics and related literatures must be able to reduce both Type I and Type II errors in order to be helpful to inexperienced and under resourced competition authorities in emerging economies. On the positive side, emerging economy competition authorities, enterprises and other economic agents operate in a world of rapid change, complexity, ambiguity, and unpredictability. When: (i) the complex objectives functions and the management challenges of business groups and other companies are brought together with; (ii) aversions to risk, losses, disappointment, complexity and ambiguity and to making difficult decisions in complex market contexts; enterprises more often employ simple decision rules and strategies and other heuristics and shortcuts.
November 8, 2012
The Canadian Intellectual Property Office (CIPO) will be hosting a series of roundtable discussions across Canada, including in Gatineau/Ottawa, Halifax, Montreal, Edmonton and Toronto from November 14th to December 12th on intellectual property issues for small and medium-size enterprises. From CIPO:
“CIPO will host a series of roundtable discussions with small and medium sized enterprises (SMEs) to better understand their challenges and barriers in using the IP system. These discussions are taking place as part of CIPO’s regulatory and mandate reviews, and will assist in developing new products and tools to better serve SMEs.”
For more information, including cities and dates, see: CIPO invites innovative SMEs to participate in roundtable discussions.
November 8, 2012
Guest post by Christine Duhaime (Duhaime Law)
Defamation by Tweet?
In one of BC’s first ever Twitter defamation actions, RCMP officer James Brown, has filed a civil claim against a Vancouver lawyer and three other defendants over, among other things, sexual, or sexually-related content disseminated over the Internet, including on Twitter.
And I think he’s likely to win his case if he can prove that the statements were published and the defendants were the authors of those statements.
Alleged Defamatory Statements
Brown filed a Notice of Civil Claim in the Supreme Court of British Columbia is which he alleges that (note that these are just allegations as against the defendants and also that the statements allegedly published by the defendants are also just allegations as against Brown):
A defendant named Grant Wakefield created false profiles on a website called Fetlife (as in fetish life) to obtain sexual photographs and postings uploaded by Brown on Fetlife;
Wakefield and two other John Doe defendants (the “John Does”) provided Brown’s Fetlife material to the media;
Wakefield and the John Does provided other images to the media depicting sexual attacks on women that they alleged were images of Brown;
The Vancouver Sun and other media outlets published the Fetlife and the other material that was allegedly provided by Wakefield and the John Does, although many later issued retractions in respect thereof;
During a period of three days, Wakefield and the John Does wrote several Tweets using pseudonyms to the effect, inter alia, that Brown: (a) was silencing victims; (b) attended the illegal bar operated by convicted killer Robert Pickton; (c) was connected to convicted killer Robert Pickton; (d) was corrupt; (e) was charged with three cases of sexual assault; and (f) received tax funding to silence witnesses and victims;
In an email to a magazine, Wakefield and the John Does stated that Brown had sexually assaulted young women and was friends with convicted killer Robert Pickton;
In the month of August 2012, Wakefield and the John Does posted allegations similar to those above on several blogs;
In July 2012, another defendant, a Vancouver lawyer named Cameron Ward posted comments on his law firm website in which he stated that in its header that Brown: (a) is a sexual sadist; and in the content of the post, that Brown: (b) is a sexual deviant; and (c) was connected to Pickton; and
In August and October 2012, Ward posted additional comments on his law firm website about Brown which were defamatory, including copies of emails sent to counsel for the Missing Women Commission of Inquiry regarding Brown.
Brown is seeking an injunction to stop the defendants and everyone else from continuing to write, print or publish any libelous material concerning him and he is seeking general, special, aggravated and punitive damages against the defendants.
Defamation in Canada
Why might Brown win his defamation claim? If he can tie the statements to one or more of the defendants, he may succeed in his claim because in Canada, in order to establish a claim in defamation, Brown only has to prove three things, namely that the words: (i) were defamatory (they would tend to lower Brown’s reputation in the eyes of a reasonable person – this means the judge who assumes he/she is reasonable); (ii) referred to Brown; and (iii) were published or communicated to at least one person other than Brown.
According to the Notice of Civil Claim, the offending content about Brown is still available on the Internet and some refer specifically to him. If that is true, he has already established two of the elements of the tort. His lawyers just need to prove that the words would lower Brown’s reputation in the eyes of a reasonable person. If the allegations in the Notice of Civil Claim are accurate, that would seem easy enough. Some of the statements are clearly repugnant, including allegations that Brown sexually assaulted a young woman (e.g., is a criminal), and was connected to and friends with convicted serial killer Robert Pickton.
The Global Competition Review has published its November 2012 edition of GCR that includes a survey of some current issues in Canada including the departure of Canada’s Commissioner of Competition (Melanie Aitken), Canadian competition litigation and an interview with the former Commissioner:
“The enforcer departs
Melanie Aitken took over Canada’s Competition Bureau three years ago with a mandate to improve antitrust enforcement in the country. She’s done that, bringing scores of cases resulting in guilty pleas and courtroom victories. While critics of her enforcement agenda and approach remain, she insists her time at the bureau was good for Canadians. Ron Knox reports from Ottawa.
Canada’s antitrust bar
Over the past two years, a revised antitrust law and a more active enforcer – coupled, of course, with a sputtering merger market – has ushered in a new era of competition litigation in Canada and a more prominent focus on contentious matters generally.
Templates/precedents and checklists to run promotional contests in Canada
Templates/precedents and checklists to comply with Canadian anti-spam law (CASL)
