Archive for the 'Competition Law' Category
The past year has been a busy and eventful one for Canadian advertising and marketing law. Recent developments since 2010 span most key areas including the application of the “general misleading advertising” provisions of the Competition Act, the use of disclaimers, social media, e-mail marketing, performance claims and telemarketing.
At the same time, new legislation has been introduced that will impact how companies market in Canada, most notably the new federal anti-spam legislation (Bill C-28), and new cross-border enforcement initiatives were announced including a new international do-not-call enforcement network co-chaired by the CRTC.
These developments mean that it remains important for companies to effectively and efficiently navigate through Canadian advertising and marketing rules. Some of the more interesting and noteworthy developments in 2010 and 2011 are discussed below.
The past year has been a busy one for Canadian competition law.
Developments in 2011 include new cases, enforcement and legislation in most key areas including abuse of dominance (the Competition Bureau’s ongoing challenge of The Toronto Real Estate Board and CREA settlement in late 2010), criminal conspiracy (developments in price-fixing class action litigation and some Bureau enforcement), refusal to deal (several important private access section 75 cases, including a decision of the Federal Court of Appeal), contested mergers (in the waste and airline markets), price maintenance (the merchant fees case involving Visa and MasterCard) and misleading advertising (involving Bell Canada, Rogers and others).
The Competition Bureau is testing the new rules under Canada’s Competition Act, which came into force in 2009 and 2010, and private plaintiffs are creating new law in a number of ongoing competition/antitrust class actions in Canada (principally indirect purchaser price-fixing cases relating to the sale and supply of dynamic random access, or “DRAMs”, high fructose corn syrup and computer operating systems).
At the same time, several new pieces of legislation have been introduced including a federal omnibus crime bill, which will eliminate conditional sentences for some competition law offences, and sweeping new anti-spam legislation (Bill C-28 or “FISA“) that once in force will be among the strictest anti-spam regimes in the world.
The Commissioner of Competition, and other federal enforcement officials including the RCMP, have also expressed intentions to adopt tougher enforcement stances in relation to competition law and other white collar crime.
In general, these developments mean that it remains important for Canadian companies, organizations and their executives to maintain a practical awareness of Canadian competition law.
Some of the key competition law and related developments of 2011 include:
Most association activities are legitimate and unlikely to raise competition law concerns. However, given that many, if not most, association activities involve the direct interaction of competitors, it is prudent for association executives, staff and their advisors to take practical steps to reduce potential competition law risk.
MARCH 28-30 2012 – Washington
The Section of Antitrust Law of the American Bar Association will be holding its 60th Antitrust Spring Meeting in Washington from March 28th to 30th 2012.
From the ABA:
“Please plan to be in Washington, DC this year for the 60th ABA Section of Antitrust Law Spring Meeting. Spring Meeting is the Antitrust Bar’s premiere conference, offering the most comprehensive review of developments in antitrust and consumer protection law, training, and networking opportunities available anywhere. In this time of belt-tightening, the Spring Meeting is the one conference that you cannot afford to miss.
The Spring Meeting programming covers cutting-edge antitrust and consumer protection issues featuring a faculty of government enforcers and leading practitioners, corporate in-house counsel, and economists and academics from around the globe. To best meet your needs, the program is organized to offer separate tracks for sessions covering international issues, litigation, and consumer protection. There is sure to be something of interest for everyone, from the least to most experienced lawyers.”
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In an interesting Washington Post article, Cecilia Kang and Jia Lynn Yang write about why the U.S. Federal Communications Commission (FCC) opposed AT&T’s acquisition of T-Mobile (see: How AT&T Fumbled its $39 Billion Bid to Acquire T-Mobile).
While the Department of Justice sued to block the merger in August (see: Justice Department Files Antitrust Lawsuit to Block AT&T’s Acquisition of T-Mobile) the FCC issued a report on November 29th which concluded that the transaction raised “significant competitive concerns” in the mobile market, and “’substantial and material’ questions about [the transaction’s] competitive effects on roaming, wholesale, and resale services, backhaul, and handsets” (see: Commissioner Copps on the Staff Report on the ATT/T-Mobile Merger). The FCC also concluded that the “parties’ claim that [the transaction] would lead to lower prices is flawed and over-estimates the benefits that would be passed on to consumers.”
According to the authors of the Post article, the “king of Washington lobbyists” and a “bare-knuckled brawler that spares no expense to win any fight”, may have used undue lobbying pressure on Washington regulators that resulted in its failure to acquire T-Mobile.
On December 7, 2011, the International Competition Network (ICN) published its updated ICN Work Product Catalogue, with interactive links to ICN reports and documents from 2008 to 2011 in the advocacy, cartel (conspiracy), mergers and unilateral conduct (monopoly / abuse of dominance) areas.
On December 5, 2011, a federal omnibus crime bill (Bill C-10) was passed that will, among other things, have the effect of eliminating conditional sentences of two years or less from being ordered by courts for violation of two of the core criminal offences under the Competition Act: criminal conspiracy agreements (section 45) and bid-rigging (section 47).
To quote the Legislative Summary issued with Bill C-10, “conditional sentencing … allows for sentences of imprisonment to be served in the community, rather than in a correctional facility. It is a midway point between incarceration and sanctions such as probation or fines.”
Currently, a number of criteria must be met for a sentencing judge to impose a conditional sentence under the Criminal Code as follows: (i) the offence is not a “serious personal injury offence” (as defined in the Code), (ii) the offence is not a terrorism offence, (iii) the offence is not a criminal organization offence prosecuted by way of indictment for which the maximum term of imprisonment is 10 years or more, (iv) the offence is not punishable by a minimum term of imprisonment and (v) the sentencing judge has determined that the offence should be subject to a term of imprisonment of less than two years, is satisfied that serving the sentence in the community would not endanger the safety of the community and the conditional sentence would be consistent with the fundamental purpose and principles set out in the sentencing guidelines of the Code.
Bill C-10 amends section 742.1 of the Criminal Code to remove the current reference to serious personal injury offences and to provide that a conditional sentence of two years or less may be ordered unless, among other things, the offence is an indictable offence with a maximum term of imprisonment of 14 years or life.
The Wall Street Journal reported earlier today that the Ontario Securities Commission (“OSC”) has approved Alpha (Alpha Trading Systems Limited Partnership and Alpha Exchange Inc.), Canada’s largest alternative trading platform to the TSX, as a stock exchange (see: Ontario Securities Regulator Allows Alpha to be Exchange).
The OSC’s Recognition Order sets out the terms and conditions of Alpha’s recognition as an exchange and the review process to be followed for the rules, policies and other similar instruments of Alpha Exchange.
The TMX, which owns and operates the TSX, is currently subject to a Cdn. $3.8 billion friendly bid by Maple Group, which requires, in addition to Provincial securities regulatory approvals in Ontario, Quebec, Alberta and British Columbia, clearance by the federal Competition Bureau. Alpha’s shareholders include a number of the Maple Group consortium’s investors including CIBC, Dejardins, National Bank and Scotia.
Last week the Commissioner of Competition expressed “serious concerns” about the Maple/TMX transaction, which is currently subject to a second stage review by the Bureau (see: Commissioner of Competition Addresses Current Enforcement Priorities in Two Wide-ranging Talks in Vancouver).
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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
Templates/precedents and checklists to run promotional contests in Canada
Templates/precedents and checklists to comply with Canadian anti-spam law (CASL)
