November 28, 2012
The Fraser Institute has published the eighth edition of its Economic Freedom of North America report (economic freedom defined as “the ability of individuals and families to make their own economic decisions, free from government influence”).
Some key findings made by this new report include (not surprisingly) Alberta ranking first in economic freedom, Canadian provinces making up four of the top ten Canadian and U.S. jurisdictions and Canadian provinces (surprisingly) ranking ahead of U.S. states in average levels of economic freedom.
The report was compiled by examining key indicators of Canadian and U.S. economic freedom, including size of government, taxation, rule of law and property rights and levels of regulation based on 2010 data.
Abstract:
“This is the eighth edition of the annual report, Economic Freedom of North America. The statistical results of this year’s study persuasively confirm those published in the previous seven editions: economic freedom is a powerful driver of growth and prosperity. Those provinces and states that have low levels of economic freedom continue to leave their citizens poorer than they need or should be.
November 28, 2012
In an interesting Ontario class action decision issued on November 16th, the Ontario Superior Court of Justice found George Brown College liable, among other things, for violating the Ontario Consumer Protection Act (“CPA”) in relation to representations in a college course calendar about a graduate business program (George Brown’s International Business Management Program).
The student plaintiffs in this case alleged that George Brown failed to deliver what was promised for their program: the ability to obtain three particular industry designations in addition to the college’s certificate. The program stated that students could “complete three industrial designations/certifications in addition to the George Brown College Graduate Certificate” which were in fact not available without additional courses and fees.
George Brown took the position that students received what promised – a George Brown graduate certificate and opportunity to complete the industry accreditations in the future – insisting “there was nothing inaccurate” in its program description and denied liability. The school’s view was also that reasonable students that diligently researched industry websites would have understood that George Brown was only offering a preparatory platform for the future completion of the three listed designations.
The plaintiff students initially filed a complaint to their program advisor after which, when unsuccessful, they commenced a class action founded on negligent misrepresentation, breach of contract and violations of the CPA.
In assessing the students’ claim, the Court found that the students’ interpretation of the course description was reasonable, and that they were right to assume that they would graduate not only with the George Brown graduate certificate but also the three stated industry designations/certifications (or on a more nuanced interpretation, at least the required courses for the designations).
The Court held that on a plain reading of the description, the reasonable interpretation was that students could complete courses to obtain the designations, not merely an “opportunity to advance to complete”. The Court also found that if qualifications were necessary, such as the fact that the program only provided “preparation” for future accreditations, it could easily have said so.
November 27, 2012
The C.D. Howe Institute published a new report on the Canadian Investment Canada Act and state-owned enterprises (SOEs): Speed Dating or Serious Courtship? Canada and Foreign State-Owned Enterprises. Abstract:
“If Canada wants to benefit from Asia’s long-term growth potential, there is no getting around the need to do business, carefully, with state-owned enterprises (SOEs), according to a report released today by the C.D. Howe Institute. In ‘Speed Dating or Serious Courtship? Canada and Foreign State-Owned Enterprises,’ author Daniel Schwanen discusses how Canada can address concerns about the potential impacts of investment by foreign SOEs in Canadian companies.”
For a copy of the C.D. Howe Institute’s new report see: Speed Dating or Serious Courtship? Canada and Foreign State-Owned Enterprises.
__________________
For more information about our regulatory services contact us: contact
For more regulatory law updates follow us on Twitter: @CanadaAttorney
November 24, 2012
On November 23, 2012, the U.K. Office of Fair Trading (OFT) announced that it had written to 100 leading price comparison websites (“PCWs”) asking that they take steps to ensure they were providing clear information to consumers (see: here). In making the announcement, which followed a detailed Review of Price Comparison Websites, the OFT said:
“The OFT has written to 100 leading price comparison websites asking them to ensure they are providing clear information to consumers, after a review published today by the OFT suggested that some sites could do more to improve trust amongst the public.
The review says that in general, price comparison websites have represented a major step forward for consumers, enabling them to secure better value when buying goods and services, but that some people are missing out on potential savings because of a lack of trust. The review also says that the role of such sites is likely to become even more important in the future as online sales continue to grow and initiatives such as the Government’s ‘midata’ project put more information in consumers’ hands.
As part of its review, the OFT conducted a web sweep of 55 price comparison sites which found that a number of sites could improve their privacy policies and their complaints and redress processes. It also identified scope for some sites to provide greater clarity about the way search results are presented, and clear identification of the business operating the website.”
Some of the specific issues considered by the OFT in its Price Comparison Website Report include privacy (e.g., the collection of customer information relating to searches and disclosure and use of information), transparency of information (e.g., how searches are ranked, commercial relationships between comparison sites and vendors and the proportion of the market searched) and complaints and exclusions of liability (e.g., clarity of complaints policies and scope of exclusions of liability).
Recommendations made by the OFT to PCWs include ensuring that privacy policies are clear; being clear about how search results are presented; being clear about the nature of the search; ensuring that there is a clear complaint and redress process; and ensuring clear identification of the website’s operator. The OFT also issued “six top tips” for consumers to keep in mind for price comparison sites.
In Canada, like other jurisdictions, comparative advertising can be a perfectly legitimate and consumer enhancing advertising strategy. It can also, however, in some instances raise issues including misleading advertising (or performance claim), defamation or intellectual property concerns – for example, the recent Rogers performance claims case involving a challenge by the Bureau of Rogers for comparative cell phone reliability claims made by Rogers.
November 24, 2012
Competition/antitrust law penalties in Canada, of course, do not compare to the magnitude of those in the EU or U.S. (where fines can reach hundreds of millions of dollars or Euros).
Having said that, given that 2012 is drawing to a close, I was curious what the fines in Canada have been over the past year. In this regard, though not exhaustive, the following is a brief tiptoe through the cartel, bid-rigging and misleading advertising fine landscape in the last year in Canada:
$12.5 million – Two companies sentenced in relation to a price-fixing cartel for polyurethane foam (January, 2012) (see: here).
$9 million – Five companies and three individuals held to have violated the misleading advertising provisions of the Competition Act (March 2, 2012) (see: here).
$5.5 million – An airline sentenced in relation to an international air cargo price-fixing cartel (July 19, 2012) (see: here).
$2 million – Three companies sentenced in relation to a gas price-fixing conspiracy in Kingston and Brockville, Ontario (March, 2012) (see: here).
$1.5 million – A company sentenced in relation to a price-fixing conspiracy in the aftermarket automotive lights market; part of the ongoing global auto parts cartel investigation (May, 2012) (see: here).
$500,000 – A company sentenced in relation to a gas price-fixing conspiracy in Belleville, Ontario (April 13, 2012) (see: here).
$125,000 – A company sentenced in relation to a bid-rigging cartel for federal government contracts (July 30, 2012) (see: here).
November 20, 2012
Earlier today, the Canadian Department of Justice announced that the final provisions of its omnibus crime bill, the Federal Safe Streets and Communities Act, eliminating conditional sentences for some serious crimes have come into force. In making the announcement, Canada’s Federal Attorney General said:
“’Our Government has a strong record of putting victims first, getting tough on serious and violent offenders, and keeping our streets and communities safe’ … ‘House arrest should not be available for offenders of serious crimes like sexual assault, kidnapping, and human trafficking. Those who commit these violent crimes must serve their time behind bars, not in the comfort of their homes and that is exactly the issue this legislation corrects.’”
On March 13, 2012, amendments to section 742.1 of the Criminal Code (the “Code”), which were part of the Federal Government’s omnibus crime bill (Bill C-10), received Royal Assent. The changes also restrict the availability of conditional sentences for some Competition Act offences.
In particular, where a person is convicted of an offence and a court imposes a sentence of less than two years, the court may impose a conditional sentence (i.e., served in the community), except in certain circumstances. These now include where an offence is an indictable offence with a maximum term of imprisonment of 14 years or life, which includes sections 45 and 47 of the Competition Act (conspiracy agreements and bid-rigging), as well as manslaughter, aggravated assault, arson and fraud over $5,000.
Other offences for which conditional sentences will not be available also include the following offences when prosecuted by indictment: prison breach, criminal harassment, sexual assault, kidnapping, human trafficking, theft over $5,000 and motor vehicle theft.
November 20, 2012
The C.D. Howe Institute published a new competition/antitrust related report today entitled “Closing the Back Door Route to Cartels: The Need to Clarify the Regulated Conduct Doctrine” that calls for the Competition Bureau to clarify how the regulated conduct defence applies and how the Bureau may act as an advocate of competition in regulated sectors.
I found this new report somewhat curious, in that it harkens back to the significantly more advocacy focused efforts of Canada’s former Commissioner of Competition (Sheridan Scott), who was highly engaged, among things, in efforts to deregulate segments of the health care sector (uncoupling dental hygienists from dentist oversight for example) and producing a significant report on competition in the professions (Self-regulated Professions Report). It is also not clear that the Bureau has an appetite to expand its guidance of its approach to the RCD (or amplify its advocacy efforts) given that in the past few years it has been moving in the opposite direction – i.e., narrowing some guidelines (e.g., its recently updated Abuse of Dominance Guidelines) and showing an increased focus on enforcement (not advocacy) and a desire to expand Canadian competition law through the courts (not through more guidelines).
Having said that, some increased clarity and certainty in relation to mergers in regulated sectors, including as recommended in this new report those regulated by the CRTC and the Bureau, would certainly be welcome.
Overview:
“The Competition Bureau should actively engage in competition matters in regulated sectors of the economy, where anti-competitive conduct may be protected by government legislation or authority. This is the consensus view of the C.D. Howe Institute’s Competition Policy Council, which held its fourth meeting on November 8, 2012.
Members of the Council held that the Bureau should more clearly delineate the scope of anti- competitive practices that it sees as protected by provincial or federal legislation or delegated authority; and it should be directly engaged in regulatory decisions that potentially impair competition. As well, the Bureau should contribute independent analysis in merger reviews in regulated sectors. …
At Issue: The Regulated Conduct Doctrine (RCD) protects cartels, and potentially other forms of anti-competitive conduct, that would otherwise be subject to scrutiny under the Competition Act if, according to the Competition Bureau’s interpretation, the conduct is authorized by provincial or federal legislation or authority. Although the RCD is prominent in provincially regulated sectors – such as agriculture marketing boards, professional services, energy and alcohol retailing – conduct in federally regulated sectors – such as transportation, telecommunications and broadcasting – may also potentially be protected under the RCD.
November 18, 2012
On Friday, the Ottawa Citizen reported that Public Works has toughened its integrity rules, with the result that CRG Consulting (which pleaded guilty to criminal bid-rigging in July) has been banned from bidding on future Public Works contracts. According to Public Works it “… will not enter into a contract or real property transaction, or accept bids from companies convicted of listed offences (such as bid-rigging) unless they have received a pardon.”
This recent public procurement development means that the risk of non-compliance for firms bidding for public sector contracts has now been raised further, in addition to other recent criminal competition law developments that include the elimination of conditional sentences (i.e., sentences served in the community) for some Competition Act offences, a recent Federal Court decision in the Maxzone case (see: here) indicating that the Federal Court will take a tougher stance on joint sentencing submissions in cartel cases, bid-rigging being an ongoing enforcement priority for the Competition Bureau and the continuing corruption/competition probe in the construction industry in Quebec. As such, the potential risk of engaging in bid-rigging or other criminal conduct under the Competition Act is now not only fines and/or imprisonment but also the possible loss of public sector clients.
Templates/precedents and checklists to run promotional contests in Canada
Templates/precedents and checklists to comply with Canadian anti-spam law (CASL)
