November 12, 2012
With testimony at the ongoing Charbonneau Commission inquiry continuing again today, the Montreal Gazette has launched a live Twitter feed of the continuing testimony – see: Live from the Charbonneau Inquiry – Montreal Gazette.
November 11, 2012
In an interesting note earlier today, the National Post reported (from The Canadian Press) that the federal Competition Bureau was working with Quebec’s corruption unit in the ongoing Quebec corruption and competition investigation which has so far led to the resignations of the mayors of Montreal and Laval and involved testimony that working in this area for some years now I can only describe as astonishing.
The articles published earlier today confirmed that the Bureau is working with Quebec’s provincial anti-corruption authorities in relation to a number of cartel and bid-rigging cases under investigation in Quebec (which was also recently confirmed by the Acting Senior Deputy Commissioner of Competition, Criminal Matters Branch, Matthew Boswell in recent remarks, including the fact that Bureau officers have been included in recent dawn raids in Quebec – see: here).
According to the Post’s reporting, the Competition Bureau, in addition to cooperating in searches, is “keeping tabs” on the ongoing Charbonneau inquiry, where testifying witnesses have made criminal and competition law allegations in relation to a wide range of conduct that includes bribery of public officials, illegal political campaign contributions and competition law violations, including criminal bid-rigging and conspiracy under sections 47 and 45 of the Competition Act. The Post also cites correspondence with the Bureau stating that criminal bid-rigging remains an enforcement priority for the Bureau.
While the Bureau’s enforcement powers include the ability to obtain court orders for search warrants and wiretaps, and uses enforcement partnerships as part of its efforts to detect and investigate Competition Act offences, it may be some time yet until any charges or laid or formal Bureau announcements are made given the relatively slower pace of criminal matters under the Act. For example, developments (e.g., pleas) and announcements are still being made in the Quebec’s Quebec gas price fixing investigation, which first began about five years ago.
November 10, 2012
Derek Ireland (djirel@sympatico.ca) has recently presented a new paper to the Canada Law and Economics Association entitled “Behavioural Economics and Competition Policy and Law in Emerging Market Economies”. Abstract:
“The literature on how behavioral economics should be applied to competition policy and law in the more advanced OECD economies has expanded greatly over the last ten years. However, behavioral economics and antitrust have to date not addressed the obvious relevance of these behavioral insights for the design and enforcement of competition policies and laws in the more than 80 emerging market economies that in the past 20 years have established new or more modern competition policies, laws and authorities. The purpose of this working paper and our research program is to make a modest start to filling this research gap.
The major argument of this working paper is that selective application of the insights from the behavioral, information and related literatures will improve the analysis and decisions of emerging economy competition authorities, reduce the risk of Type I errors/false positives (e.g. blocking a good merger) and Type II errors/false negatives (e.g. clearing a bad merger), and enhance the competence, credibility and visibility of new, recently established and other competition authorities in emerging economies.
One of the guiding principles from the research is that behavioral economics and related literatures must be able to reduce both Type I and Type II errors in order to be helpful to inexperienced and under resourced competition authorities in emerging economies. On the positive side, emerging economy competition authorities, enterprises and other economic agents operate in a world of rapid change, complexity, ambiguity, and unpredictability. When: (i) the complex objectives functions and the management challenges of business groups and other companies are brought together with; (ii) aversions to risk, losses, disappointment, complexity and ambiguity and to making difficult decisions in complex market contexts; enterprises more often employ simple decision rules and strategies and other heuristics and shortcuts.
November 9, 2012
I am attaching below a copy of our PowerPoint presentation from the recent Canadian Society of Association Executives’ (CSAE) 2012 National Conference & Showcase, held in Ottawa last week. Our presentation focused on competition law and compliance for trade and professional associations, including in relation to key association activities (e.g., fee schedules and compensation, data collection and information exchanges, association membership). Also included are a number of association related case studies: Competition Law and Associations in Canada.
November 9, 2012
Guest contribution by Dr. Derek Ireland, Ottawa (djirel@sympatico.ca)
Introduction and Background
My 2008 PhD dissertation was on the interactions between India’s business groups and the country’s competition policies and laws over the past four decades. Since then, I have continued my research on these interactions and the special challenges posed by state-owned and privately owned business and enterprise groups for competition authorities in emerging market economies as well as the more advanced OECD competition law jurisdictions. My work on this question includes several articles, working papers and conference presentations.
There is little published material on competition law cases involving state-owned and privately owned enterprise and business groups located in emerging market economies. Enterprise and business groups from emerging markets have been entering OECD country markets in a major way only in the past 10-15 years; and many emerging economies with large business group sectors such as India, China and Indonesia started to enforce their competition laws only in the past few years. However, this situation could change dramatically in the future given the “going global” strategies of many emerging economy enterprise and business groups and the more than 80 developing and emerging market economies that now have competition laws and authorities (see e.g. Ireland 2008a and 2011a).
Therefore, OECD country competition authorities and other government agencies may soon be facing complex and less familiar competition and other issues and cases as privately owned or state-owned business groups and networks in emerging economies become more prominent and influential in many advanced economies through exports, greenfield investments, mergers and acquisitions, R&D partnerships and joint ventures, strategic alliances, and other mechanisms.
The CNOOC-Nexen Transaction
Canada is currently facing such a matter under its Investment Canada Act. This matter involves the proposed CAD 15.1 billion acquisition of Nexen by CNOOC: the China National Offshore Oil Corporation. Nexen is a comparatively smaller privately owned Canadian oil and gas producer and participant in the oil sands and the Canadian and global oil and gas markets. Nexen is located in the Canadian province of Alberta.
CNOOC is a large and quite diversified state-owned corporation/enterprise group that is involved in a large number of products, services and markets. CNOOC was established by the Government of China soon after the start of the reform period in 1982 in order to exploit offshore oil and gas resources. This state-owned corporate entity has many of the attributes of an enterprise group. While CNOOC largely focuses on the oil and gas sector, the corporation now has six business sectors, including exploration and development of oil and gas, technical services, logistics services, chemicals and fertilizer production, natural gas, power generation, and financial services and insurance. The Government of Canada has recently announced that a decision on this transaction will be delayed for a month and is now expected to be provided in the middle of December 2012.
The CNOOC acquisition of Nexen is a “friendly” takeover, which has already been approved by the Nexen shareholders apparently because of the large premium over the current market valuation of the company. It is reported that the Nexen purchase represents China’s largest overseas acquisition to date and the first time that a Chinese state-owned enterprise has attempted to fully acquire a Canadian oil and gas producer.
As a consequence, this acquisition represents and important benchmark and unfamiliar territory for all of the company and government players that are involved in the transaction in Canada and China. The federal government decision under the Investment Canada Act will provide an important precedent that will strongly influence future transactions and related commercial relationships between Canadian and Chinese companies and between our two economies.
Insights for Future Mergers
and Other Competition Law Cases
While subject to Competition Bureau and Investment Canada review, the focus of this transaction has been on the Investment Canada Act review. Canadian debates on applying the “net benefit test” and national security considerations under the Investment Canada Act to this transaction, and a previous unsuccessful attempt by CNOOC to purchase an American oil company Unocal, have raised a number of difficult issues that could be relevant to the review of future mergers and other competition law cases in the OECD jurisdictions that would involve state-owned enterprises and enterprise groups from emerging market economies.
November 8, 2012
The Canadian Intellectual Property Office (CIPO) will be hosting a series of roundtable discussions across Canada, including in Gatineau/Ottawa, Halifax, Montreal, Edmonton and Toronto from November 14th to December 12th on intellectual property issues for small and medium-size enterprises. From CIPO:
“CIPO will host a series of roundtable discussions with small and medium sized enterprises (SMEs) to better understand their challenges and barriers in using the IP system. These discussions are taking place as part of CIPO’s regulatory and mandate reviews, and will assist in developing new products and tools to better serve SMEs.”
For more information, including cities and dates, see: CIPO invites innovative SMEs to participate in roundtable discussions.
November 8, 2012
Guest post by Christine Duhaime (Duhaime Law)
Defamation by Tweet?
In one of BC’s first ever Twitter defamation actions, RCMP officer James Brown, has filed a civil claim against a Vancouver lawyer and three other defendants over, among other things, sexual, or sexually-related content disseminated over the Internet, including on Twitter.
And I think he’s likely to win his case if he can prove that the statements were published and the defendants were the authors of those statements.
Alleged Defamatory Statements
Brown filed a Notice of Civil Claim in the Supreme Court of British Columbia is which he alleges that (note that these are just allegations as against the defendants and also that the statements allegedly published by the defendants are also just allegations as against Brown):
A defendant named Grant Wakefield created false profiles on a website called Fetlife (as in fetish life) to obtain sexual photographs and postings uploaded by Brown on Fetlife;
Wakefield and two other John Doe defendants (the “John Does”) provided Brown’s Fetlife material to the media;
Wakefield and the John Does provided other images to the media depicting sexual attacks on women that they alleged were images of Brown;
The Vancouver Sun and other media outlets published the Fetlife and the other material that was allegedly provided by Wakefield and the John Does, although many later issued retractions in respect thereof;
During a period of three days, Wakefield and the John Does wrote several Tweets using pseudonyms to the effect, inter alia, that Brown: (a) was silencing victims; (b) attended the illegal bar operated by convicted killer Robert Pickton; (c) was connected to convicted killer Robert Pickton; (d) was corrupt; (e) was charged with three cases of sexual assault; and (f) received tax funding to silence witnesses and victims;
In an email to a magazine, Wakefield and the John Does stated that Brown had sexually assaulted young women and was friends with convicted killer Robert Pickton;
In the month of August 2012, Wakefield and the John Does posted allegations similar to those above on several blogs;
In July 2012, another defendant, a Vancouver lawyer named Cameron Ward posted comments on his law firm website in which he stated that in its header that Brown: (a) is a sexual sadist; and in the content of the post, that Brown: (b) is a sexual deviant; and (c) was connected to Pickton; and
In August and October 2012, Ward posted additional comments on his law firm website about Brown which were defamatory, including copies of emails sent to counsel for the Missing Women Commission of Inquiry regarding Brown.
Brown is seeking an injunction to stop the defendants and everyone else from continuing to write, print or publish any libelous material concerning him and he is seeking general, special, aggravated and punitive damages against the defendants.
Defamation in Canada
Why might Brown win his defamation claim? If he can tie the statements to one or more of the defendants, he may succeed in his claim because in Canada, in order to establish a claim in defamation, Brown only has to prove three things, namely that the words: (i) were defamatory (they would tend to lower Brown’s reputation in the eyes of a reasonable person – this means the judge who assumes he/she is reasonable); (ii) referred to Brown; and (iii) were published or communicated to at least one person other than Brown.
According to the Notice of Civil Claim, the offending content about Brown is still available on the Internet and some refer specifically to him. If that is true, he has already established two of the elements of the tort. His lawyers just need to prove that the words would lower Brown’s reputation in the eyes of a reasonable person. If the allegations in the Notice of Civil Claim are accurate, that would seem easy enough. Some of the statements are clearly repugnant, including allegations that Brown sexually assaulted a young woman (e.g., is a criminal), and was connected to and friends with convicted serial killer Robert Pickton.
The Global Competition Review has published its November 2012 edition of GCR that includes a survey of some current issues in Canada including the departure of Canada’s Commissioner of Competition (Melanie Aitken), Canadian competition litigation and an interview with the former Commissioner:
“The enforcer departs
Melanie Aitken took over Canada’s Competition Bureau three years ago with a mandate to improve antitrust enforcement in the country. She’s done that, bringing scores of cases resulting in guilty pleas and courtroom victories. While critics of her enforcement agenda and approach remain, she insists her time at the bureau was good for Canadians. Ron Knox reports from Ottawa.
Canada’s antitrust bar
Over the past two years, a revised antitrust law and a more active enforcer – coupled, of course, with a sputtering merger market – has ushered in a new era of competition litigation in Canada and a more prominent focus on contentious matters generally.
Templates/precedents and checklists to run promotional contests in Canada
Templates/precedents and checklists to comply with Canadian anti-spam law (CASL)
