Archive for the 'Uncategorized' Category
– By Christine Duhaime (Duhaime Law)
Our colleague Christine Duhaime has written this rather good comparative competition and terrorist financing note.
A Tale of Two Crimes and Their Punishment
This is a tale of two crimes and two punishment: the first, a conviction for price-fixing under §45(1) of the Competition Act in Québec in which the guilty party was sentenced to a term of 12 months imprisonment; the second, a conviction for terrorist financing under §83.03(b) of the Criminal Code in British Columbia in which the guilty party was sentenced to a term of six months imprisonment. Both were sentenced pursuant to the sentencing principles set out in §718 of the Criminal Code.
Québec Gasoline Price-Fixing Case
In 2008, the Competition Bureau uncovered a gasoline price-fixing cartel operating in several towns in Québec. According to the evidence, competitors in Magog, Sherbrooke and Thetford Mines telephoned each other regularly and agreed to set the price of gasoline at their gas stations and agreed on the timing of gas price increases. Criminal charges were laid against individuals and gas retail companies, including Irving, Shell, Olco and Esso, pursuant to §45(1)(c) of the Competition Act.
§45(1)(c) of the former Competition Act made it a criminal offence for, among other things, two persons to fix the price of a product if competition was prevented or lessened “unduly”. On conviction, the former conspiracy offence carried a maximum term of imprisonment of up to 5 years imprisonment and a fine of up to $10 million (subsequently increased to 14 years and $25 million). Stopping such cartel-type behaviour remains an enforcement priority for the Competition Bureau.
Several of the gas companies involved and individuals pleaded guilty to the charges; others are contesting the charges and their cases are before the courts in Québec. The Québec Superior Court, hearing most of the cases, noted recently in the price-fixing cases, that the courts “must severely punish those violating the Competition Act and in so doing, send a clear and dissuasive message to those tempted to impede competition…[the punishment cannot be] just a rap on the knuckles” (see: R. c. Darby, 2012 QCCS 26). Pierre Bourassa, a sales representative with Les Pétroles Global Inc. that operated under the Olco banner, pleaded guilty to price-fixing of gas prices in Sherbooke and Magog. He had no prior criminal record and was considered not to be a danger to society. He was sentenced to 12 months in prison by the Québec Superior Court.
British Columbia Terrorist Financing Case
In Canada, suppressing terrorism is an “uphill battle” (see: Commission of Inquiry Into the Investigation of the Bombing of Air India Flight 182), and a battle which Canada stands poised to lose unless more is done to detect, deter and prosecute terrorist financing.
Mr. Justice Kenneth L. Campbell of the Ontario Superior Court of Justice in: Dale v. The Toronto Real Estate Board:
“Accordingly, it is not plain and obvious that the plaintiffs’ claim fails to disclose a reasonable cause of action regarding the tort of conspiracy. Indeed, in my view the plaintiffs have alleged that the defendants engaged in a classic type of conspiracy, namely, combining together to drive a business competitor and their novel business model out of the marketplace.
While the plaintiffs candidly admit a lack of detailed knowledge as to all of the factual nuances of the conspiracy, this is hardly surprising given the nature of the allegation. As Cumming J. aptly stated, when faced with similar circumstances in North York Branson Hospital v. Praxair Canada Inc., [1998] O.J. No. 5993 (S.C.J.), at para. 22:
‘In truth, the very nature of a claim of conspiracy is that the tort resists detailed particularization at early stages. The relevant evidence will likely be in the hands and minds of the alleged conspirators. Part of the character of a conspiracy is the secrecy and the withholding of information from alleged victims. The existence of an underlying agreement bringing the conspirators together, proof of which is a requirement borne by a plaintiff, often must be proven by indirect or circumstantial evidence. A conspiracy is more likely to be proven by evidence of overt acts and statement by the conspirators from which the prior agreement can be logically inferred. Such details would not usually be available to a plaintiff until discoveries. These considerations and the general theme of Hunt, instructing courts not to shy away from difficult litigation, also militate against holding pleadings in civil conspiracy cases to an extraordinary standard.’”
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Given that I write about monopolies from time to time, this rather fine article in the Legal Post about the regulation of the legal profession – or perhaps the control of the profession, depending on one’s perspective – caught my eye by Vern Krishna, a prominent tax lawyer in Ontario.
His articulate note is also interesting given that the Competition Bureau has on occasion reviewed Canadian self-regulated professions, including the legal profession, most recently in its Self-regulated professions report.
It’s time to open legal doors – Vern Krishna
When it comes to monopolistic protection, no one does it better than the legal profession.
JANUARY 25-26 2012 – Toronto
The Canadian Institute will be holding an Advertising and Marketing Law Conference on Wednesday, January 25-26, 2012 at the Four Seasons Hotel, Toronto, Ontario.
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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Promotional contests in Canada are largely governed by the Competition Act, the Criminal Code, privacy legislation and the common law of contract. In addition, Quebec has a separate regulatory regime governing contests and contest authority (the Régie des alcools, des courses et des jeux). Canada’s federal anti-spam legislation (CASL) also commonly applies to Canadian contests and other promotions (see below).
Guest post from Andrei Mincov at Mincov Law
Again Lego finds itself under an attack from Mega Brands, a Montreal-based competitor and maker of Mega Bloks. This time – in U.S. District Court in the Central District of California.
Lego owns a U.S trademark for the design of its world-famous blocks. Mega Brands claims that the trademark registration should be invalidated, which would allow Mega Brands to freely export its products to the United States.
The foundation of the claim is that what Lego has is not really a trademark. Rather, it is an attempt to obtain patent-like protection under the guise of a 3D trademark.
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:
In his recent Thanksgiving message, the Chair of the Antitrust Section of the American Bar Association announced the forthcoming publication of the Seventh Edition of Antitrust Law Developments in the Spring of 2012:
“ … drum roll, please, we will be introducing the Seventh Edition of Antitrust Law Developments this spring, for which we all will be especially thankful whenever we need to research the law.”
For Canadian competition lawyers, who practice in a virtual jurisprudential vacuum, this book and U.S. cases are sometimes something to be thankful for indeed.
For more information about the ABA’s competition/antitrust law publications, see:
American Bar Association, Section of Antitrust Law – Publications
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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)
