Archive for the 'Associations' Category
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.
The Commissioner of Competition, Melanie Aitken, addressed current enforcement priorities in two engaging and wide-ranging talks in Vancouver this evening: a keynote speech at a reception hosted by the University of British Columbia, National Centre for Business Law at the Four Seasons and a Vancouver Competition Policy Roundtable meeting organized by Professor Tom Ross of the Sauder School of Business.
November 10, 2011
We are pleased to announce the forthcoming publication by Carswell this fall of The Competition Law Guide for Trade Associations in Canada jointly authored by Steve Szentesi and Mark Katz.
On November 2, 2011, Madam Justice Simpson of the federal Competition Tribunal (the “Tribunal”) granted leave to Realtysellers (“RS”) and The Canadian Real Estate Association (“CREA”) to intervene in the Toronto Real Estate Board (“TREB”) abuse of dominance case.
Following the Tribunal’s decision, CREA’s President Gary Morse said:
“We are pleased that the Tribunal is willing to hear our position in this matter and look forward to contributing to the Tribunal on important issues that will affect not only TREB and its members, but will also have broader implications for other Boards and Associations … The important issues under discussion may lead to a Tribunal Order affecting data sharing over the Internet which directly affects the interests of all CREA members … It is important for us, and our members, to be at the table and part of this discussion.”
CREA and RS both moved for leave to intervene in the TREB abuse of dominance case on October 18, 2011.
Abuse of Dominance
To establish abuse of dominance under the Competition Act, which is one of the Act’s civil “reviewable matters”, the Commissioner of Competition must establish: (i) that a firm (or firms) is dominant (possesses market power in a relevant market), (ii) the firm has engaged in a practice of anti-competitive acts and (iii) the practice has had, is having or is likely to have the effect of preventing or lessening competition substantially.
The Competition Bureau (the “Bureau”) commenced its case against TREB in May 2011, arguing that TREB was using its control of the MLS System to pass rules and policies restricting brokers access to and use of TREB’s MLS System. In particular, the Bureau has taken the position that certain TREB rules regarding the use of its MLS data prevents brokers from using “virtual office websites” (secure, password protected “VOWs” to provide real estate brokerage services to their customers over the Internet).
With respect to the necessary elements to establish abuse of dominance, the Bureau is arguing that TREB is dominant (in the residential real estate services market in the Greater Toronto area), that is has engaged in a practice of anti-competitive acts (rules governing the use of its MLS data) and that its conduct has resulted in a substantial prevention or lessening of competition.
CREA’s and Realtysellers’ Intervenor Applications
The Competition Tribunal Act provides that any person may intervene in Tribunal proceedings with leave from the Tribunal, which has held that applicants for intervenor status must meet the following elements: (i) they are directly affected, (ii) the matter is legitimately within the scope of the Tribunal’s consideration (or sufficiently relevant to its mandate), (iii) the intervenor’s representations are relevant to an issue raised by the Commissioner and (iv) the intervenor will bring a unique or distinct perspective to the proceedings.
CREA sought leave to intervene to deal with, among other things, relevant market definition (product and market definition), the use and competitive impact of VOWs (and other data-sharing vehicles in Canada) and the impacts of potential remedies on CREA and its members (including on its MLS and other trademarks).
Madam Justice Simpson granted CREA leave to intervene with respect to: (i) the use and competitive impact of other (i.e., non-VOW) Internet data-sharing vehicles in Canada, (ii) the appropriate terms of use/conditions to be included in rules to implement non-VOW Internet data-sharing vehicles and (iii) the impact of proposed remedies on CREA and its members (including on its MLS and other trademarks). With respect to process, the Tribunal granted CREA leave to intervene to review discovery transcripts and productions, call two fact or expert witnesses, cross-examine the Commissioner’s witnesses, participate in pre-hearing proceedings and make oral and written submissions.
The Tribunal also granted RS leave to intervene with respect to: (i) the cost savings and operational efficiencies of operating a virtual office (and the savings that can be passed on to consumers), (ii) the impact of TREB’s current rules and policies (including its recent VOW policy) on non-traditional brokerages that want to supply MLS information to consumers through a virtual office and (iii) the proposed order and impact it may have on non-traditional brokerages that want to provide consumers with MLS information through virtual offices.
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November 1, 2011
We are pleased to announce the upcoming online webinar offered by Carswell and West in conjunction with the forthcoming publication of The Competition Law Guide for Trade Associations in Canada, jointly authored by Steve Szentesi and Mark Katz.
On October 25, 2011, the Competition Bureau published the Commissioner of Competition’s speech given at the 2011 Canadian Bar Association’s Annual Competition Law Conference in Ottawa.
It is fair to say that the Commissioner’s recent speech presented a singular tone across the civil and criminal competition law areas: enhanced enforcement.
Of the Commissioner’s remarks, some of the more interesting points include the Bureau’s increased focus on reviewing non-notifiable mergers (i.e., transactions that do not trigger the notification thresholds under the Competition Act), the statement that the Bureau has begun to revoke markers in some immunity cases where in its view immunity applicants are not complying with its Immunity Program and a subtle suggestion that the Bureau was preparing to bring, but not quite yet in a position to commence, the first conspiracy cases under the amended section 45 (Canada’s new hard core criminal conspiracy offences). The following are some highlights from the Commissioner’s recent speech.
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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On December 15, 2010 Canada’s new anti-spam legislation received Royal Assent, which will, when it comes into force, be one of the strictest anti-spam regimes in the world:
An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act (the “Anti-spam Act”).
Earlier this Fall, consultations on two sets of draft Regulations concluded and so the new law may come into effect later this Fall or in the Spring of 2012 (see coming into force information below).
October 4, 2011
We are pleased to announce the forthcoming publication by Carswell this fall of The Competition Law Guide for Associations in Canada jointly authored by Steve Szentesi and Mark Katz.
Templates/precedents and checklists to run promotional contests in Canada
Templates/precedents and checklists to comply with Canadian anti-spam law (CASL)
