The Competition Bureau announced earlier today that it was kicking off Fraud Prevention Month with a series of panel discussions on fraud prevention across Canada that will assemble experts from law enforcement agencies, academics and business and consumer groups.
In making the announcement, the Bureau said:
“The Competition Bureau is organizing a series of panel discussions on fraud prevention across Canada that will bring together experts from law enforcement agencies, academia, as well as businesses and consumer groups. The focus of these discussions will be on practical strategies for fighting fraud and raising awareness so that Canadians can protect themselves in the marketplace, particularly in the online and mobile environments. These events will take place at the University of Ottawa on March 6, at the University of Alberta in Edmonton on March 8, and at Concordia University in Montreal on March 13.
Fraud is a crime that affects individuals, businesses and the economy as a whole. ‘It’s a matter of confidence,’ said Melanie Aitken, Commissioner of Competition. ‘Consumers need to know enough to make informed purchasing choices, based on advertising that is truthful and complete.’
The Competition Bureau, along with the Fraud Prevention Forum, plays an important role in helping Canadians get the information they need to be informed and confident consumers. Consumers also have a role to play in stopping fraud by arming themselves with the facts and reporting fraud when they encounter it.
The Fraud Prevention Forum, chaired by the Competition Bureau, is comprised of more than 125 private sector firms, consumer and volunteer groups, government agencies, and law enforcement organizations that have come together to help combat fraud and raise awareness. During Fraud Prevention Month, Forum members will participate in a number of targeted activities across the country, designed to raise awareness among consumers and businesses about the dangers of fraud.”
Recent fraud related cases that the Bureau has been involved in include bid-rigging (see: here and here), price-fixing (see: here, here, here, here, here and here), market division (see: here), deceptive telemarketing (see: here and here) and deceptive marketing cases (see: here and here).
On February 13, 2012, the Federal Court of Appeal released an important limitations period judgment in Garford Pty Ltd. v. Dywidag Systems International.
In this case, the Australian company Garford commenced an action against Dywidag Systems International and several individual defendants seeking damages for alleged infringement of some of Garford’s Canadian patents and based on alleged violations of section 45 of the Competition Act (criminal conspiracy agreements).
In a lower court decision, the Federal Court granted the defendants summary judgment dismissing Garford’s claim on the basis that it was limitation barred under the Competition Act.
Section 36 of the Competition Act contains specific limitation periods that require, among other things, claims to be brought within two years of the relevant conduct (“two years from … the day on which the conduct was engaged in”).
Garford appealed, and the Federal Court dismissed its appeal. The Court of Appeal held that it could find no error in the lower court’s application of the law or factual findings and was “in substantial agreement with [its] reasoning with respect to the limitation period.”
Garford had argued that the lower court erred in failing to hold that the “discoverability principle” applied to extend the limitation period under section 36. The “discoverability principle” or “rule” operates on the theory that, in competition law matters, the start of the limitation period should be postponed until the time a plaintiff knew (or ought to have known) of the anti-competitive conduct.
The Court of Appeal held that the issue of discoverability did not arise on the facts of this case because, among other things, between April 10, 2006 (the date on which Garford’s solicitors sent a cease and desist letter to the defendants) and the date the action was commenced (August, 2008 – more than two years later) there were no new facts relevant to the alleged breaches of section 45. In the Court’s words: “the information available to Garford on April 10, 2006 was essentially the same information it had when it commenced the action.”
Interestingly, however, the Court of Appeal left the door open for the discoverability rule to apply in other cases:
“For these reasons, the judge’s findings of fact, which on the applicable standard of review cannot be set aside in this case, preclude any argument based on discoverability, assuming without deciding, it is legally available.”
As such, the applicability of the discoverability rule as a mechanism to extend the limitation period under section 36 of the Competition Act remains unsettled.
The Competition Bureau has published its February edition of CB In Brief (see: CB In Brief – February 2012).
This edition includes announcements relating to the Chicoutimi Hospital bid-rigging case, 2012 increase of the size of transaction merger threshold and the Bureau’s new monthly reports of concluded merger reviews.
The Global Competition Review (GCR) has published a volume on private antitrust litigation. This issue includes articles on private antitrust litigation in Europe, the U.S., Turkey and an interview with Procter & Gamble Vice President and General Counsel Libby Rutherford (see: GCR February 2012).
On February 27, 2012, the Commissioner of Competition brought a motion for the production of nine years of MLS data from The Toronto Real Estate Board in this ongoing abuse of dominance case. According to the Commissioner’s motion, the Bureau has unsuccessfully requested this presumably vast volume of MLS data from TREB and now seeks to compel TREB to produce the data, which is, according to the Bureau, “at the very heart of [the] proceeding”.
In particular, the Bureau asserts that TREB’s MLS data is relevant to its assessment of geographic market, market shares of individual brokerages and agents, the ability of real estate brokers that wish to use “virtual office websites” or “VOWs” effectively against incumbent real estate brokers and issues relating to commissions.
The Bureau’s theory in this case is essentially that TREB has abused its dominant position in the residential real estate services market in the Greater Toronto Area through membership rules that restrict its members’ ability to operate “virtual office websites” or “VOWs”.
Real estate board MLS systems in Canada, which are operated by local real estate boards, typically include a range of information relating to both property listings (e.g., price, dimensions and other relevant property characteristics, such as number of rooms, bedrooms, zoning, etc.) and “sold” information once a property is sold (e.g., sale price, number of days a property was on the market, agents involved in the sale, etc.).
While TREB has asserted privacy law concerns regarding the disclosure of its MLS data, the Bureau asserts privacy law exceptions in its pleading. The Bureau also pleads the Tribunal’s discovery rules for the right to obtain production of documents (see: notice of motion, Competition Tribunal Rules).
Hearing dates have been scheduled in this case for September, 2012 (see: Revised Scheduling Order).
A few interesting advertising and marketing law developments that caught my eye today included:
Canadian Transportation Agency Wraps up Consultations on Air Services Price Advertising Regulations
The Canadian Transportation Agency wrapped up its public consultations on its Air Services Price Advertising Regulations on February 26th. The input that the CTA received from its consultations will contribute to new airfare price advertising regulations, to be published in the Canada Gazette in the coming months. The CTA’s initiatives in the airline sector are consistent with a more general effort by other enforcement agencies, including the Competition Bureau, to ensure that the total price for goods and services is disclosed for consumers (the recently settled Bell case being perhaps the most conspicuous example). For more see: Canadian Transportation Agency – Air Services Price Advertising Regulations.
Real Estate Council of British Columbia February Report – Advertising Compliance Reminder
In the Real Estate Council of British Columbia’s interesting February newsletter, the Council kicks off its updates and summaries of disciplinary cases with a summary of advertising law compliance and some examples of recent discipline. The Council’s note is a reminder that advertising in Canada is governed not only by the Competition Act and other general “framework” legislation, including consumer protection legislation, but also by a variety of industry and sector specific rules – in the case of real estate licensees in British Columbia, this includes the Real Estate Council’s Rules (see: Real Estate Council Rules).
REALTORS® in British Columbia are also subject to the CREA Code and other specific rules including, for example, the CRTC’s Unsolicited Telecommunications Rules and the new anti-spam legislation (Bill C-28), once in force, if engaging in electronic marketing.
Some of the concerns and cases discussed in the Council’s February newsletter include where advertising failed to include the name of the brokerage, the advertising of unapproved team names and a general reminder not to engage in misleading advertising (see: Report From Council).
U.S. Federal Trade Commission to Host Public Workshop to Explore Online Advertising Disclosures
The Federal Trade Commission announced today that it would hold a public workshop to explore advertising disclosures in online and mobile media on May 30, 2012.
Given the increasing cooperation between the Competition Bureau and international enforcement agencies, including the U.S. FTC and DoJ, as well as the increasing level of convergence in regulation generally (particularly the regulation of Internet and new media), this upcoming FTC workshop caught my eye.
This U.S. FTC announcement today also made me wonder whether the Canadian Competition Bureau has plans to update its own Internet advertising guidelines. While these were updated to reflect Competition Act amendments in 2009, significant substantive changes to these guidelines, in terms of new media and evolving technologies, have not been made since they were issued in 2003 (see: Application of the Competition Act to Representations on the Internet).
Advertising Standards Canada’s recent complaint case summaries (October 1, 2011 to February 29, 2012) are available on ASC’s website.
Recent identified advertiser cases have involved 7-Eleven Canada Inc., Extreme Fitness, Shoppers Drug Mart, Stokes International, Virgin Mobile, eBay Canada and K-97 Classic Rock, among others.
The majority of recent ASC complaints made under the Canadian Code of Advertising Standards relate to the accuracy and clarity of ads (section 1). Other complaints have recently been made under sections 3 (price claims), 11 (superstition and fears) and 14 (unacceptable depictions and portrayals).
ASC’s case summaries include both identified and non-identified advertisers (cases where advertising was either not withdrawn or withdrawn before being reviewed by ASC).
ASC is a national not-for-profit advertising self-regulatory body that administers and enforces the Canadian Code of Advertising Standards, which provides a uniform set of rules for accurate advertising in Canada and under which consumer and trade complaints can be made (see e.g.: Consumer Complaints).
ASC also provides a fee-based advertising pre-clearance review service in five regulated areas of advertising: children’s, food and non-alcoholic beverages, alcoholic beverages, consumer drugs and cosmetics (see: ASC Clearance Services).
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We are pleased to announce that we will be facilitating a compliance course at the Real Estate Board of Greater Vancouver on February 29, 2012 entitled “Competition Law and REALTORS®: What You Say and Do Matters”.
About this course:
Competition Law and REALTORS®: What You Say and Do Matters was designed by ACRE with the assistance of CREA to help Canadian REALTORS® understand and comply with Canadian competition law. While Canadian competition law applies to all real estate professionals, this course was designed specifically for REALTORS®. This course provides an overview in plain language of Canadian competition law and practical compliance guidelines to assist REALTORS® in complying with Canadian competition law and a number of illustrative case studies. This national competition law course is available to members of Canadian real estate boards and associations. Read the rest of this entry »
Templates/precedents and checklists to run promotional contests in Canada
Templates/precedents and checklists to comply with Canadian anti-spam law (CASL)
