Leave (Canadian competition law).
“Leave”, or judicial permission, is required from the federal Competition Tribunal in relation to several types of proceedings under the Competition Act and Competition Tribunal Act.For example, under section 103.1 of the Competition Act, private parties may make applications to the federal Competition Tribunal with leave under sections 75 (refusal to deal), 76 (price maintenance) and 77 (exclusive dealing / tied selling / market restriction) for a Tribunal order.
The statutory test for leave for private access applications under sections 75 or 77 (refusal to deal or exclusive dealing / tied selling / market restriction) requires that the Tribunal have “reason to believe that an applicant is directly and substantially affected in the applicants’ business by any practice referred to in [sections 75 or 77] that could be the subject of a [Tribunal] order” (section 103.1(7)). The Competition Act sets out a substantially similar test for private access applications under section 76 (price maintenance) but with a lower burden on applicants (see section 103.1(7.1)).
The Tribunal has held, in the context of refusal to deal leave applications, that it should grant leave where there is “sufficient credible evidence to give rise to a bona fide belief that [an] applicant may have been directly and substantially affected in the applicant’s business by a reviewable practice” (see e.g., Barcode Systems Inc. v. Symbol Technologies Canada ULC, [2004] (Comp. Trib.); National Capital News Canada v. Canada (Speaker of the House of Commons)(2002), 23 C.P.R. (4th) 77 (Comp. Trib.)).
Another example of leave under the Competition Act relates to intervenor status before the Competition Tribunal. The Competition Tribunal Act allows any person affected by Tribunal proceedings to intervene in proceedings with leave from the Tribunal (subsection 9(3)). The Tribunal has held that to grant intervenor status, the following elements must be met: (i) the matter alleged to affect the person seeking leave to intervene must be legitimately within the scope of the Tribunal’s consideration (or must be a matter sufficiently relevant to the Tribunal’s mandate); (ii) the person seeking leave to intervene must be directly affected; (iii) all representations made by a person seeking intervenor status must be relevant to an issue specifically raised by the Commissioner; and (iv) the person seeking leave to intervene must bring a unique or distinct perspective to the Tribunal that will assist the Tribunal in deciding the issues before it (see e.g., Commissioner of Competition v. Canadian Waste Services Holdings Inc., 2000 Comp. Trib. 10;Commissioner of Competition v. The Canadian Real Estate Association, 2010 Comp. Trib. 12 (order allowing National FSBO Network Inc.’s motion for leave to Intervene)).
“Lemon market” (misleading advertising).
American Antitrust Institute, Amicus Brief, Lexmark International v. Static Control Components: “When a firm successfully deceives, it is unjustly enriched at the expense of other market participants. Deception injures consumers by inducing mistaken demand for inferior or unneeded products, raising search costs, and sometimes creating “lemon” markets where lower-quality goods or services drive out higher-quality goods.”
Leniency (Canadian conspiracy/cartel law).
Competition Bureau, Bulletin, Leniency Program: “Under the [Competition Bureau’s] Leniency Program, the Bureau will recommend to the Public Prosecution Service of Canada (‘PPSC’) that qualifying applicants be granted recognition for timely and meaningful assistance to the Bureau’s investigation and any subsequent prosecution. While leniency candidates are not eligible for a grant of immunity under the Bureau’s immunity Program, their early admission and cooperation respecting their role in a cartel offence can earn them a substantial basis for lenient treatment in sentencing.”
International Competition Network, Anti-Cartel Enforcement Manual, Chapter 4: “Leniency. Leniency is a generic term to describe a system of partial or total exoneration from the penalties that would otherwise be levied on a cartel member in exchange for reporting its cartel membership to a competition agency and cooperating with the agency’s investigation.”
For more information, see: Competition Bureau Immunity and Leniency Programs. See also: Conspiracy and Conspiracy FAQs.
Leniency marker (Canadian conspiracy/cartel law).
Competition Bureau, Leniency Program: Frequently Asked Questions: A ‘leniency marker’ is the acknowledgement given to a leniency applicant (Applicant) that records the date and time of an Applicant’s application to the Leniency Program. It establishes the Applicant’s position in line in relation to other individuals or organizations seeking to participate in the Leniency Program. The leniency marker guarantees the Applicant’s position in line, subject to the Applicant meeting all of the other criteria of the Leniency Program.”
For more information, see: Competition Bureau Immunity and Leniency Programs. See also: Conspiracy and Conspiracy FAQs.
Libel (tort law).
Foulidis v. Ford, 2012 ONSC: “The plaintiff must prove four things on the balance of probability to prove a libel in this case: (1) that the defendant spoke the words in issue; (2) that the defendant published the words in issue to one or more third parties; (3) that the words in issue referred to the plaintiff; (4) that the words in issue were defamatory of the plaintiff.”
Canadian Bar Association, “Defamation: Libel and Slander” (online): “Libel is the type of defamation with a permanent record, like a newspaper, a letter, a website posting, an email, a picture, or a radio or TV broadcast. If you can prove that someone libeled you, and that person does not have a good defence … then a court will presume that you suffered damages and award you money to pay for your damaged reputation. But going to Supreme Court is expensive and even if you win, you may not get as much as it costs you to sue. In deciding on damages, the Court will consider your position in the community. For example, if you are a professional, damages may be higher.”
Lift letter (marketing).
R. v. David Stucky, 2006 CanLII 41523 (Ont. S.C.): “A lift letter is a promotional technique, routinely used in direct mail promotions, urging further consideration of the initial offer before its expiration.”
Like-baiting (spam law).
A type of spam. Facebook, “News Feed FYI: Cleaning Up News Feed Spam” (April 10, 2014): “’Like-baiting’ is when a post explicitly asks News Feed readers to like, comment or share the post in order to get additional distribution beyond what the post would normally receive.”
Literal meaning (Canadian advertising/marketing law).
Generally speaking, advertising or marketing in Canada can be misleading under federal (e.g., the federal Competition Act) or provincial (e.g., consumer protection legislation) where a representation or advertising claim is either literally false or misleading (the latter which may take into consideration the “general impression” of an advertising claim). With respect to the literal meaning of an advertising claim, the Supreme Court has held: “The phrase ‘literal meaning of the terms used therein’ [for the purposes of the Quebec Consumer Protection Act] does not raise any interpretation problems. It simply means that every word used in a representation must be interpreted in its ordinary sense” (Richard v. Time Inc., 2012 SCC 8).
For more information, see: Advertising Law, Advertising Law FAQs and Misleading Advertising. See also: General Impression Test and Disclaimers.
“Long rules” / “official contest rules” (Canadian contest/sweepstakes law).
Canadian promotional contests/sweepstakes commonly provide entrants with “long rules” or “official contest rules” when a contest is launched. It is important that long contest rules be drafted to protect the contest sponsor in the event issues arise. In this regard, it has been held that contests are contracts with an offer to enter the contest met with performance by contest entrants (i.e., entering and participating in the contest). As such, contest sponsors should ensure that precise long rules (i.e., “official contest rules”) are included that reflect the details of the contest, anticipate potential contingencies (e.g., technical problems) and set out the details of the contest as clearly as possible – for example, eligibility requirements, how to enter, prize descriptions, number and values, draws and award of prizes, odds of winning and indemnifying and releasing the contest sponsor and any co-sponsors or prize sponsors. Long rules are typically posted on a contest entry landing page via a link from the short rules / mini rules.
For more information about Canadian contest/sweepstakes law, see: Contests, Contests and CASL, Contest FAQs, Contest Tips and Contests and Social Media.
For information about the Canadian contest/sweepstakes precedents (template rules) and checklists that we offer for sale, see: Canadian Contest Forms/Precedents.
Lottery (Canadian contest/sweepstakes law).
In addition to the standalone promotional contest provision in the federal Competition Act (under section 74.06), criminal illegal lottery offences in Canada’s federal Criminal Code also apply to contests in Canada (sections 206 and 207). These provisions make it criminal offences to, among other things, run certain games of pure chance or mixed chance and skill where consideration (i.e., payment of money or provision of something else of value) is provided in order to enter and participate in the game. While the relevant provisions of the Code are complex and somewhat archaic, they generally codify, although inconsistently, the former three common law elements for illegal lotteries: (i) a prize, (ii) chance and (iii) consideration. In order to avoid these illegal lottery offences, Canadian contest sponsors typically remove the consideration element (by offering a no purchase required entry option) and some chance (by requiring a skill-testing question).
Re: Earth Future Lottery: “… Parliament does not happily abide gaming activities of any sort in Canada. The little it tolerates, it does so grudgingly. Section 206 [of the Criminal Code] is prohibitive in nature, not regulatory. The purpose of Parliament in enacting it was generally to outlaw gaming and lotteries, not just to ensure they would be run honestly. Subsection 206(1) creates a number of indictable offences proscribing a comprehensive range of gaming and gaming-related activities. Subsection 206(4) makes it a summary conviction offence to buy, take or receive a lot, ticket, other device mentioned in 206(1). Although s. 207 allows some tightly circumscribed exceptions to s. 206, it too contains a broad prohibition. Subsection 207(3) makes it an offence to do anything for the purpose of the conduct, management, operation of, or participation in a lottery scheme unless the doing of it is authorized by or pursuant to some provision of 207. Thus, even permitted lotteries must strictly adhere to the limits imposed by the terms and conditions of s. 207.”
For more information about Canadian contest/sweepstakes law, see: Contests, Contests and CASL, Contest FAQs, Contest Tips and Contests and Social Media.
For information about the Canadian contest/sweepstakes precedents (template rules) and checklists that we offer for sale, see: Canadian Contest Forms/Precedents.
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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, 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.
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Templates/precedents and checklists to run promotional contests in Canada
Templates/precedents and checklists to comply with Canadian anti-spam law (CASL)
