Canadian COMPETITION LAW

Steve Szentesi
Kevin Wright (Davis LLP)

Extract from a chapter to be published in CLEBC
Annual Review of Law & Practice – 2014

The following is our final competition law installment from our forthcoming chapter in CLEBC’s Annual Review of Law & Practice – 2014.  For the first four posts (misleading advertising, mergers and Investment Canada Act, civil and criminal matters, and private actions) see: here, here, here and here.

********************

TRADE ASSOCIATIONS

In 2013, competition law and trade and professional associations became a key theme again for the Bureau.  The new Commissioner John Pecman addressed trade association compliance and recent cases five times in remarks between late 2012 and the end of 2013 (see in particular: “Remarks by John Pecman, Commissioner of Competition”, Toronto, Ontario (November 14, 2013); and “Remarks by John Pecman, Interim Commissioner of Competition”, Toronto, Ontario (October 30, 2012).  The Commissioner indicated in these recent public remarks in 2013 that the Bureau is likely to show an interest in associations where they engage in the following types of activities, among others: restricting the types of professional service practice offerings (e.g., setting limits on things like members’ office location, size, etc.); limiting the number or range of members or the ability of association members to compete (e.g., through mandatory or suggested fee schedules or product quality standards that advantage some members over others); and activities that reduce incentives to vigorously compete (e.g., exchanges of competitively sensitive information among competitors).  While not an exhaustive list of potential competition law issues that can arise in the trade and professional association context, the Commissioner’s comments throughout 2013 provide a useful list of some of the Bureau’s potential concerns.

NEW COMPETITION BUREAU GUIDELINES

New Immunity and Leniency
Program FAQs

On September 25, 2013, the Bureau issued revised FAQs for its Immunity and Leniency Programs (see: Competition Bureau, Announcement, “Competition Bureau Publishes Revised Immunity and Leniency FAQs” (September 25, 2013); Competition Bureau, Immunity Program FAQs (2013); and Leniency Program FAQs (2013)).  The Bureau has established Immunity and Leniency Programs under which applicants are eligible to receive full immunity from prosecution or reduced penalties for cooperating with a Bureau investigation.  Under the Immunity Program, a party or company implicated in criminal conduct under the Act may offer to cooperate with the Bureau in an investigation and, if all conditions of the Program are met, be eligible for full immunity from prosecution.  Under the Leniency Program, parties not entitled for full immunity (e.g., are not first in) may qualify for fine reductions of 30-50%.  The Bureau’s new Immunity and Leniency FAQs add a number of new Immunity/Leniency Program related topics (e.g., how it treats “markers”, i.e., places in line, for investigations it does not intend to pursue).  They also expand and clarify existing topics, including the proffer process (statements provided by Immunity/Leniency Program applicants as part of their cooperation with a Bureau investigation), how indirect sales are treated (to assess Canadian competition law liability and calculate the “volume of commerce” of Canadian sales to assess fines) and how the Bureau arrives at fine recommendations in criminal cases.

Other Bureau Guidelines

In 2013, the Bureau also issued: (i) an updated version of its Confidentiality Bulletin describing its approach to the communication of confidential information under the Act (see: Competition Bureau, Announcement, “Competition Bureau Updates Confidentiality Bulletin” (September 30, 2013)); and (ii) a draft Communication During Inquiries Bulletin for public consultation describing how the Bureau communicates with targets, industry participants, complainants and the public during inquiries (see: Competition Bureau, Announcement, “Competition Bureau Seeks Input from Canadians on its Transparency Initiative” (October 3, 2013)).

The Bureau also announced that it would be updating its two key competition law compliance related guidelines: the Conformity Continuum and Corporate Compliance Programs Bulletins (see: “Remarks by John Pecman, Commissioner of Competition”, Toronto, Ontario (October 24, 2013)).

OTHER COMPETITION LAW
DEVELOPMENTS

Some other competition law developments and trends of note in 2013 included:

Competition Bureau adopts social media.  In 2013, the Bureau launched a Twitter account (@CompBureau) and LinkedIn.  The Commissioner’s LinkedIn address is: http://www.linkedin.com/pub/john-pecman/6b/241/523.

Regulatory interventions.  The Bureau launched a public consultation for regulatory sectors in which to intervene (i.e., where the Bureau does not have direct enforcement powers based on existing regulatory frameworks) (see: Competition Bureau, Announcement, “Competition Bureau Seeks Input from Canadians on Potential Advocacy Initiatives” (September 10, 2013)).  The Bureau is currently beginning to announce regulated sectors, including retail pharmacy and beer retailing in Ontario, in which it has decided to review or intervene for more competition.

Increased Bureau/CRTC cooperation.  In 2013, the Bureau and the CRTC also signed a Letter of Agreement for closer cooperation between the two regulators (see: Competition Bureau, Announcement, “Greater cooperation between CRTC and Competition Bureau to better serve Canadians” (September 25, 2013)).  While the new agreement does not change the two enforcement agencies’ substantive roles, given that both consider telecommunications and broadcasting issues, some of the topics include: notification between the agencies; collaborative training; information sharing and best practices; and periodic meetings of senior management.

********************

SERVICES AND CONTACT

We are a Toronto based competition and advertising law firm offering business and individual clients efficient and strategic advice in relation to competition/antitrust, advertising, Internet and new media law and contest law. We also offer competition and regulatory law compliance, education and policy services to companies, trade and professional associations and government agencies.

Our experience includes advising clients in Toronto, across Canada and the United States on the application of Canadian competition and regulatory laws and we have worked on hundreds of domestic and cross-border competition, advertising and marketing, promotional contest (sweepstakes), conspiracy (cartel), abuse of dominance, compliance, refusal to deal and pricing and distribution matters. For more information about our competition and advertising law services see: competition law services.

To contact us about a potential legal matter, see: contact

For more information about our firm, visit our website: Competitionlawyer.ca

Comments are closed.