Archive for the 'Submissions' Category
March 13, 2013
Earlier today, the C.D. Howe Institute published a new report on the Canadian dairy industry, dairy regulation and competition entitled: Putting the Market Back in Dairy Marketing. This new report, authored by Colin Busby and Daniel Schwanen, makes recommendations for reform of Canada’s dairy supply management system. Abstract:
“Canada’s controversial but politically untouchable dairy supply management system can be reformed, while addressing the concerns of wary politicians, consumers tired of overpaying for milk and cheese, and farmers worried about their future. In ‘Putting the Market Back in Dairy Marketing,’ authors Colin Busby and Daniel Schwanen call for better representation of consumer interests in milk marketing decisions, a cap on milk prices, and steps to measure efficiency and open new markets for dairy farmers.”
The overall conclusion of this new report is that achieving the Canadian Dairy Commission’s legislated objectives requires fewer constraints on the production and trade of milk and dairy products, which the authors argue impose significant and unnecessary costs on Canadian consumers (and also raise potential longer-term viability issues for the industry).
Based on this conclusion, the report makes the following recommendations: (i) changing the membership of the CDC board of directors to ensure consumer and industrial users’ interests are represented in decision-making, consistent with the regulatory set-up in many other industries; (ii) capping prices for milk set by the CDC, until a reasonable benchmark is reached for an “efficient farm,” using national and international comparisons; and (iii) restoring to the federal government the powers over export and interprovincial trade that it delegated to the provinces so that interprovincial trade can expand, and efficient farmers who wish to operate entirely outside of the quota system may export outside of Canada.
This report comes also as the Canadian Competition Bureau appears to also be renewing its interest in advocacy in regulated sectors (i.e., areas in which the Bureau may not have direct enforcement powers).
For example, in one recent speech by the Interim Commissioner of Competition John Pecman, the Interim Commissioner confirmed that the Bureau is interested in “incrementally increasing” its competition advocacy efforts (in addition to enforcement) in key industries including the digital economy and retail and health sectors. The Interim Commissioner also set out the following four factors the Bureau would consider in deciding whether to initiate regulatory interventions in particular sectors: (i) whether a forum exists and there is a high level of public interest, (ii) whether the Bureau would be contributing in a useful way (e.g., bringing forward unique arguments), (iii) being able to gauge the impact of advocacy efforts, and (iv) clear, tangible benefits for Canadians.
De-regulation, and increased clarity on competition law safe harbours from enforcement, such as the “regulated conduct defence”, have also been topics of increased recent debate and other reports – for example, the C.D. Howe’s November 2012 report: Closing the Back Door Route to Cartels: The Need to Clarify the Regulated Conduct Doctrine.
For a copy of this new C.D. Howe report on the dairy industry see: Putting the Market Back in Dairy Marketing.
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.
************
March 7, 2013
Earlier today, the Federal Government posted comments that it has received to the proposed Industry Canada regulations under Canada’s pending federal anti-spam legislation (CASL). Revised Industry Canada regulations were posted in earlier January for public comments, based on significant industry push back to CASL and, in particular in relation to the proposed Industry Canada Regulations, narrow and arguably commercially unworkable exceptions to the legislation. More than 100 comments have been posted, from a variety of companies, associations, individuals and other organizations.
February 10, 2013
On February 6, 2013, the Competition Bureau released its submission responding to the CRTC’s Wireless Code Working Document issued on January 28th. In its submission, the Bureau takes issue with two main aspects of the CRTC’s proposed approach to a new wireless code: potential switching costs for consumers (including plan lengths) and advocating for effective disclosure of key terms, particularly price and service limitations.
Consistent with recent enforcement, notably in the abuse of dominance area including in connection with its challenges against the Toronto Real Estate Board and Ontario hot water heater suppliers, the Bureau raises several potential switching cost concerns relating to long-term contracts, handset locking and excessive termination fees. Some of the potential adverse effects that, in the Bureau’s view, may flow from these wireless contract and handset features include reducing the incentive for incumbent carriers to innovate, raising rivals’ costs and acting as a barrier for new wireless entry.
Not surprisingly, and consistent with many Canadians, the Bureau takes particular issue with the fact that the contemplated code does not include any limit on the duration of wireless agreements. With respect to handset locking, the Bureau takes the position that device locking should be prohibited and that service providers should be required to unlock any previously locked devices free of charge. The Bureau also advocates for the uncoupling of current device subsidy contracts (i.e., for the financing of mobile devices over the life of a plan) from wireless service contracts generally, allowing consumers to continue with device financing agreements after switching to alternate providers.
The CBA’s National Competition Law Section has posted its letter to the Parliamentary and Senate Standing Committees on Finance and National Finance commenting on the proposed amendments to the Investment Canada Act (ICA) contained in Bill C-38 (for our previous posts on the proposed Investment Canada Act changes see: here and here).
Bill C-38 would, if passed, introduce two changes to the ICA: first, the Federal Government would be authorized to accept security for payment for certain penalties under the ICA, including where undertakings had been breached; second, it would broaden the exceptions to the existing privilege protections under the ICA to allow the Minister of Industry or Canadian Heritage to publicly explain why an investor had been sent a notice under subsection 23(1) of the ICA (a preliminary notice that the Minister was not satisfied that an investment was likely to be of net benefit to Canada, the relevant substantive test under the ICA).
The Section is generally critical of Bill C-38’s “omnibus style” of legislation and lack of “meaningful comment or debate”. The Section also questions whether security payments would increase compliance with undertakings, expresses a concern about the absence of limitations or guidance in the Bill on the circumstances when security may be taken (or the nature or amount) and takes the position that the additional disclosure powers for the responsible Minister under the ICA represents an “inadequate improvement on the status quo” (a criticism echoed by many other observers). In particular, the Section is critical of the permissive nature of disclosure and recommends a requirement to give reasons for Ministerial decisions (and make them public where the Minister approves or rejects an investment).
____________________
For more information about our regulatory law services contact: contact
For more regulatory law updates follow us on Twitter: @CanadaAttorney
On May 22, 2012, the American Bar Association issued joint Antitrust and International Law Section comments on the Competition Bureau’s revised draft Abuse of Dominance Enforcement Guidelines. (The Bureau issued revised draft Abuse Guidelines for public comment on March 22nd – see: Competition Bureau Issues Revised Abuse of Dominance Guidelines for Comment).
Some of the more interesting points of the ABA Sections’ joint comments include:
Unilateral conduct. The Sections recognize that unilateral conduct is inherently ambiguous (as well as the relative vacuum of section 79 abuse of dominance jurisprudence to date in Canada, unlike some other major jurisdictions including the United States and European Union).
AMPs. The Sections call for additional guidance as to when the Bureau will seek administrative monetary penalties (the current revised draft Guidelines describe when the Tribunal may order AMPs but contain no guidance as to when the Bureau may seek AMPs, which were introduced in March, 2009 and expose companies to penalties of up to $15 million). The ABA Sections specifically recommend that the Bureau “offer guidance on practical aspects of the use of AMPs, including when and why AMP remedies will be sought by the Bureau, the scale of AMPs likely to be sought, and what type of conduct will typically be in issue when AMPs are sought.”
Examples and analysis. The Sections criticize the significant reduction in examples and analysis in the revised draft Guidelines compared to the previous 2001 Guidelines, which the ABA refers to as a “substantial loss of guidance to the business community”.
Intent and joint abuse. The Sections question why the Bureau has chosen to take the position that intent to injure or exclude a competitor is not a necessary element of abuse under section 79 (which is well established in Canada) and call for increased guidance on the Bureau’s position of what will constitute joint dominance (an issue that remains unsettled in Canada). With respect to intent, it is well established that an allegedly dominant firm must engage in intentional anti-competitive conduct (i.e., conduct that is “predatory, exclusionary or disciplinary” toward a competitor).
Replacement of sector and conduct specific guidelines. The Sections ask for clarification as to whether the Bureau’s updated Abuse Guidelines are meant to replace earlier sector and conduct specific abuse related guidelines (including the Bureau’s draft Enforcement Guidelines on Abuse of Dominance in the Airline Industry, grocery abuse guidelines (Abuse of Dominance Provisions as Applied to the Grocery Sector), Information Bulletin on the Abuse of Dominance Provisions as Applied to the Telecommunications Industry and Predatory Pricing Enforcement Guidelines).
Regulated conduct defence. The Sections suggest that earlier language be added once again to the current draft relating to whether (and under what circumstances) the Bureau will consider the application of Canada’s regulated conduct defence (a previously completely common law doctrine, recently partially codified under section 45 of the Competition Act, but which remains unsettled in relation to the Competition Act’s civil reviewable practices provisions including section 79).
The ABA Sections’ comments also address other aspects of the Bureau’s draft Guidelines including the hypothetical monopolist test, degree of market power (and time period during which market power must be exercised for control of a market(s) to exist), business justifications (which the Federal Court of Canada has held can offset allegedly anti-competitive acts) and the interplay between sections 79 (abuse of dominance) and 90.1 (civil agreements provision) of the Act.
For the ABA’s cover letter and comments see:
Coming soon.
********************
SERVICES AND CONTACT
We are a Toronto based competition and advertising law firm offering business and individual clients efficient and strategic advice in relation to competition/antitrust, advertising, Internet and new media law and contest law. We also offer competition and regulatory law compliance, education and policy services to companies, trade and professional associations and government agencies.
Our experience includes advising clients in Toronto, Canada and the United States on the application of Canadian competition and regulatory laws and we have worked on hundreds of domestic and cross-border competition, advertising and marketing, promotional contest (sweepstakes), conspiracy (cartel), abuse of dominance, compliance, refusal to deal and pricing and distribution matters. For more information about our competition and advertising law services see: competition law services.
To contact us about a potential legal matter, see: contact
For more information about our firm, visit our website: Competitionlawyer.ca
Templates/precedents and checklists to run promotional contests in Canada
Templates/precedents and checklists to comply with Canadian anti-spam law (CASL)
