Canadian COMPETITION LAW

Identity fraud (fraud).

RCMP, Identity Theft and Identity Fraud: “Identity fraud is the actual deceptive use of the identity information of another person (living or dead) in connection with various frauds (including for example personating another person and the misuse of debit card or credit card data).”

Identity theft (fraud).

RCMP, Identity Theft and Identity Fraud: “Identity theft refers to the preparatory stage of acquiring and collecting someone else’s personal information for criminal purposes. As of January 8, 2010, Senate Bill S-4 became law, making it illegal to possess another person’s identity information for criminal purposes.”

Illegal lottery (Canadian contest/sweepstakes law).

In addition to the standalone promotional contest provision in the federal Competition Act (section 74.06), criminal illegal lottery provisions of the federal Criminal Code also apply to contests in Canada (sections 206 and 207).  These provisions prohibit certain types of gaming activities unless an exemption is available or one or more elements of the relevant offence is removed.  While the relevant provisions of the Code are complex and somewhat archaic, they generally codify, although inconsistently, the former common law elements for illegal lotteries: (i) a prize, (ii) chance and (iii) consideration.

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.”

Canadian Better Business Bureau, BBB Code of Advertising: “No contest, drawing or other game of chance that involves the three elements of prize, chance and consideration should be conducted since it constitutes a lottery [under the federal Criminal Code] and is in violation of provincial statutes.”

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.

Illegal review suppression (advertising/marketing law term).

U.S. Federal Trade Commission (FTC): “Using unjustified legal threats, other intimidation, or false accusations to prevent or remove a negative consumer review.”

For more information, see: Testimonials and Influencer Agreements.

Image advertising.

Competition Bureau, Ensuring Truth in Advertising: “The term ‘image advertising’ is used to describe all forms of non-product advertising.  The fact that an advertisement does not specifically mention the advertiser’s product does not automatically transform it from a commercial attempt to expand or retain the advertiser’s market into an altruistic exercise in social responsibility.  To the extent that any such advertisement could materially misrepresent or falsely portray market information, it would be subject to the same prohibitions under the [Competition Act] as are the more familiar product claim advertisements, as long as it promotes, directly or indirectly, a business interest.”

Immunity (Canadian conspiracy/cartel law).

Competition Bureau, Bulletin, Immunity Program under the Competition Act:  “A party implicated in criminal anti-competitive activity that may violate the Act may offer to co-operate with the Bureau and request immunity. …immunity refers to a grant of full immunity from prosecution under the [Competition Act].  Where a party does not qualify for immunity, but the party co-operates with the Bureau, the Bureau may recommend that the DPP grant some form of leniency.”

For more information, see: Conspiracy and Conspiracy FAQs. See also: Competition Bureau Immunity and Leniency Programs.

Immunity agreement (Canadian conspiracy/cartel law).

Competition Bureau, Immunity Program: Frequently Asked Questions: “An immunity agreement is an agreement between the Director of Public Prosecutions (DPP) and an Applicant setting out the terms and conditions under which the DPP grants the Applicant immunity from prosecution.  The agreement sets out the Applicant’s obligations to provide complete, timely and ongoing cooperation and full, complete, frank and truthful disclosure throughout the Bureau’s investigation and any subsequent prosecutions.  It also states who is covered by the agreement, how information provided by the immunity recipient will be treated and under what circumstances the agreement can be revoked.  Both the Applicant and the DPP must sign the agreement.  The Commissioner also signs the agreement for the purpose of giving effect to the Commissioner’s rights and obligations as set out in the agreement. Unofficial sample corporate and individual template agreements are available on the Bureau’s website.”

For more information, see: Conspiracy and Conspiracy FAQs. See also: Competition Bureau Immunity and Leniency Programs.

Immunity marker (Canadian conspiracy/cartel law).

Competition Bureau, Immunity Program: Frequently Asked Questions: “An ‘immunity marker’ is the confirmation given to an immunity applicant (Applicant) that it is the first party to approach the Competition Bureau requesting a recommendation of immunity with respect to criminal anti-competitive activity involving a particular product or business interest.  The immunity marker guarantees the Applicant’s place at the front of the line, subject to the Applicant meeting all of the other criteria of the Immunity Program.  Once an immunity marker is granted, the Applicant has a limited period of time, usually 30 calendar days, to provide the Bureau with a detailed statement describing the illegal activity, its effects in Canada and the supporting evidence.  This statement is known as a “proffer” …”

For more information, see: Conspiracy and Conspiracy FAQs. See also: Competition Bureau Immunity and Leniency Programs.

Immunity Plus (Canadian conspiracy/cartel law).

Under the Competition Bureau’s Leniency Program, persons that are not entitled to full immunity under the Bureau’s Immunity Program (for example, they are not “first in” to the Bureau, as required under the Bureau’s Immunity Program) may nevertheless be granted some level of leniency in penalties where they: (i) terminate their participation in the illegal conduct, (ii) agree to cooperate fully with the Bureau and prosecution and (iii) plead guilty.  Having said that, a leniency applicant may, nevertheless, be entitled to “Immunity Plus” status regarding a second newly-disclosed offence.

Competition Bureau, Bulletin, Leniency Program (2010): “If a leniency applicant discloses evidence of conduct constituting a further criminal offence under the Act unknown to the Bureau, the applicant may be eligible for Immunity Plus status.  If the leniency applicant meets the requirements set out in the Immunity Program regarding the newly-disclosed offence, the Bureau will recommend that the PPSC grant the applicant immunity from prosecution with respect to the newly-disclosed offence. In addition, for second-in and later leniency applicants, the Bureau will recommend that any individuals qualifying under the Leniency Program be afforded further lenient treatment in respect of the offence for which leniency is being sought. In recognition of the leniency applicant’s full cooperation in reporting the further offence, the Bureau will typically recommend that an additional five to 10 percent be added to the applicant’s leniency discount. … If a leniency applicant’s cooperation reveals that the scope of the initial cartel offence for which leniency is being sought is broader (e.g., in terms of the duration of the offence) than previously identified by or known from the Bureau’s investigation or from other cooperating parties, the Bureau will not use that information against the applicant when determining a leniency recommendation.”

Competition Bureau, Immunity Program: Frequently Asked Questions: “Parties that are not first to disclose conduct to the Bureau may nevertheless qualify for immunity [under the Bureau’s Immunity Program] if they are first to disclose information relating to another offence.  This concept is known as ‘Immunity Plus’.  Immunity Plus may be available in situations such as the following: Organization ABC is not the first to disclose the pencils cartel to the Bureau and therefore does not qualify for immunity for pencils.  However, ABC does disclose information relating to a different offence unknown to the Bureau, one involving a different product, for example, a cartel with respect to erasers.

ABC will be granted immunity for the cartel on erasers, subject to compliance with the requirements set out in the Immunity Program.  If ABC pleads guilty to the cartel related to pencils, the value of ABC’s contribution to the investigation of the pencils cartel and the disclosing of the eraser cartel will be recognized by the Bureau and the PPSC in their sentencing recommendations with respect to the pencils cartel.  For further information concerning sentencing recommendations, please consult the Bureau’s Leniency Program, available on its website.

Immunity Plus encourages targets of ongoing investigations to consider whether they may qualify for immunity in other markets where they compete.  Although an organization may not qualify for immunity for the initial matter under investigation, the value of its assistance in a second matter can lead to immunity for the second offence and a reduction (thus the “Plus”) in the calculation of the recommended sentence for its participation in the first offence.  Immunity Plus is aimed at encouraging companies already under investigation to report the full extent of their illegal activities and put all competition law matters behind them.

Where an Applicant qualifies for a recommended Immunity Plus discount, the Bureau will typically recommend that an additional five to 10 percent be added to the Applicant’s leniency discount. The size of the recommended Immunity Plus discount will depend on a number of factors relating to the conduct for which immunity is available.  These factors include the strength of the evidence provided by the Applicant and the estimated significance of the case it brought forward, measured in such terms as the affected volume of commerce in Canada; the geographic scope of the conduct in question; and the number of co-conspirator organizations and individuals involved in the conduct in question. This discount will be applied only where all conditions of cooperation under the Immunity Program and Leniency Program are met by the Applicant.”

For more information, see: Conspiracy and Conspiracy FAQs. See also: Competition Bureau Immunity and Leniency Programs.

Implied consent (Canadian federal anti-spam legislation (CASL)).

In general, Canada’s federal anti-spam legislation (CASL) requires that senders of commercial electronic messages (CEMs) to Canadians have either express or implied consent from recipients, unless an exception under CASL applies. Consent may be implied for CASL, including where there is: (i) an “existing business relationship” (as defined by CASL); (ii) an “existing non-business relationship” (also as defined by CASL); (iii) where a person has published their electronic address without a statement that they do not want to receive unsolicited CEMs and the message is relevant to their business; and (iv) a recipient has disclosed their electronic address to a sender without indicating that they do not want to receive unsolicited CEMs and the message is relevant to their business. Each of these different types of implied consent under CASL have very specific requirements that must be met that should be carefully reviewed by electronic marketers.

For more information about CASL, see: CASL (Anti-Spam Law), CASL Compliance, CASL Compliance Tips, CASL Compliance Errors, CASL FAQs, Contests and CASL.

For more information about the CASL compliance checklists and precedents that we offer for sale, see: CASL Compliance Checklists and Precedents.

“In Canada or an Area Thereof” (abuse of dominance).

The first branch of the test for abuse of dominance under the Competition Act (section 79) requires the Commissioner of Competition to show before the Competition Tribunal that a firm (or firms) is dominant in one or more relevant markets.  The language of the section is that a person (or persons) “substantially control, throughout Canada or any area thereof, a class or species of business.”  The phrase “in Canada or an area thereof” has been held to be synonymous with geographic market in the economic sense.  See e.g., Competition Bureau, Enforcement Guidelines on the Abuse of Dominance Provisions (2001).  See also Canada (Director of Investigation & Research) v. NutraSweet Co. (1990), 32 C.P.R. (3d) 1 (Comp. Trib.); Canada (Director of Investigation and Research) v. Laidlaw Waste Systems Ltd. (1992), 40 C.P.R. (3d) 289 (Comp. Trib.); Canada (Director of Investigation and Research) v. The D&B Companies of Canada Ltd. [1995], 64 C.P.R. (3d) 216 (Comp. Trib.).

Indemnification / co-sponsor agreements (Canadian advertising and contest/sweepstakes law).

In some contests/promotions, a contest sponsor or other party may want to participate in a promotion with a third party (e.g., a contest administrator, influencer or marketing partner) being responsible for the majority of the marketing and administration of the contest/promotion.

Some examples include franchisors with franchisees conducting the majority of a contest/promotion, major brands that partner with influencers and brands that partner with other co-sponsors or prize sponsors.

In many cases, one party, whether it is a franchisor, major brand or a co-sponsor, is interested in being involved with a contest or promotion (e.g., contributing some prizes or intellectual property assets, such as their name or marks), but wants another party (or parties) to conduct the majority of the marketing and administration for the contest/promotion.

Given, however, the potential risk of partnering in promotions with third parties (particularly, smaller companies or potentially less sophisticated individuals, such as influencers), it can make sense to enter into an indemnification or co-sponsor agreement with third parties involved in a promotion.

While the substance of a particular agreement will depend on the parties, type of contest/promotion and what each party involved is responsible for in the promotion, there are often several types of common provisions in each agreement.

These include covenants setting out the obligations of the parties (i.e., responsibilities in the contest/promotion including marketing, administration and contribution of prizes), description of the promotion (including how it will be marketed, marketing channels and timetable), use of names, marks and other intellectual property, covenants to comply with relevant laws (e.g., Canadian anti-spam law (CASL), misleading advertising laws endorsements/testimonials laws including disclosure of material connections), indemnification provisions to shift risk in the event issues arise and often rights to review advertising and draft creative before being published or posted.

Such agreements can help parties shift risk where they are co-sponsors or partners in a promotion. These types of agreements are also a practical way for parties to engage in a contest or other type of promotion with relatively limited involvement (e.g., only contributing a prize(s) or the use of their name, marks or other intellectual property), while still achieving marketing value for their brand.

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.

Indexing (advertising/marketing).

“Indexing” is an online / Internet advertising term which refers to publishing an article on multiple pages on the web.  Indexing allows for more web space for advertising and also has the additional potential benefit of increasing website traffic (i.e., resulting in more traffic on a website and in particular more “page views”).

Indirect and direct purchasers (Canadian conspiracy/cartel law).

Terms used in competition/antitrust class actions and in particular in reference to the level of harm (or “overcharge”) suffered by various levels of consumers in a supply chain from price-fixing conduct.

Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57: “As I have described above, indirect purchasers are consumers who have not purchased a product directly from the alleged overcharger, but who have purchased it either from one of the overcharger’s direct purchasers, or from some other intermediary in the chain of distribution.  The issue is whether indirect purchasers have a cause of action against the party who has effectuated the overcharge at the top of the distribution chain that has allegedly injured them indirectly as the result of the overcharge being ‘passed on’ down the chain to them.”

For more information, see: Conspiracy and Conspiracy FAQs.

Infant industries (competition/antitrust law). 

OECD, Competition Assessment Toolkit (2011):“Infant industries are industries that may not be strong enough to survive open competition.”

Information exchanges (Canadian conspiracy/cartel law).

OECD, Policy Roundtable, Information Exchanges Between Competitors Under Competition Law (2010): “Exchanges of information are interactions among competitors that, from a competition law perspective, fall between the universally condemned hard-core “naked” cartels and tacit collusion arising from oligopolistic interdependence, generally considered legal. In the course of doing business, companies can – and often do – exchange various types of information through different channels, which leads to increased transparency in the market which can both bolster allocative and productive efficiencies as well as facilitate collusive outcomes among competitors.  Generally, information exchanges among competitors may fall into three different scenarios under competition rules: (i) as a part of a wider price fixing or market sharing agreement whereby the exchange of information functions as a facilitating factor; (ii) in the context of broader efficiency enhancing cooperation agreements such as joint venture, standardization or R&D agreements; or (iii) as a stand-alone practice, whereby the exchange of information is the only cooperation among competitors.  The competition assessment of information exchanges in the first two scenarios is relatively straightforward. Competition agencies assess the possible restrictive effects of such practices in the broader context of the cartel or the agreement to which they are ancillary. The stand-alone exchange of information raises, however, significant challenges as it is crucial to recognize whether it resembles more a cartel-type infringement or an efficiency enhancing cooperation. This is ever more important in the context of the steadily increasing anti-cartel enforcement activity, as a result of which fully-fledged explicit cartel agreements are giving way to looser and more insidious ways of collusive cooperation among competitors.  Generally, competition laws of different jurisdictions around the world do not have specific provisions dealing with exchanges of information. Instead, these are dealt within the framework of traditional prohibitions against cartel agreements and/or concerted practices. However, this may pose particular challenges depending on the elements which need to be proven.”

For more information, see: Conspiracy and Conspiracy FAQs.

Informant (conspiracy/cartel law).

ICN, Anti-cartel Enforcement Manual (March, 2010): “A person who volunteers information to an agency about cartel conduct. He/she would typically have specific knowledge of, or material information about, a cartel, and may be a participant in the cartel. An informant’s decision to come forward and disclose the existence of the particular cartel often risks his/ her continued employment, status and/or reputation within a particular organisation and/or industry. As such, an informant would normally require some guarantee of confidentiality and/or anonymity.  In some circumstances, informants may (subject to the laws of a particular jurisdiction) be willing to work undercover on behalf of an agency inside an active cartel and provide information as a witness during the course of the investigation and provide a witness statement.”

For more information, see: Competition Bureau Immunity and Leniency Programs.

Innovation market (competition/antitrust economics).

OECD, Policy Roundtable, Market Definition (2012): “Some industries such as the media industry, telecommunications, biotech or medical technology are characterized by rapid technological progress. New products are developed, formerly separate functionalities are integrated into one product and process innovations lead to the entry of firms from other industries thereby increasing the competitive pressure on incumbent firms.  These developments are often unpredictable, leading to the creation of new markets or the convergence of formerly separate markets.  As a result, market boundaries may shift rapidly. Some of these dynamic industries can be considered as ‘Schumpeterian’ where through a ‘creative destruction’ the competitive position of firms can change very quickly.  In such industries it is not the price that is the main competitive parameter but innovation or the introduction of a new superior product. Competition does not take place ‘in the market’ but ‘for the market.  In such markets ‘one firm may serve the entire market or at least a large portion of it for a period of time, only to be displaced by another firm with a leapfrogging technological innovation that delivers dramatically improved performance or dramatically lower cost.’”

U.S. Federal Trade Commission and U.S. Department of Justice, Antitrust Guidelines for Collaborations Among Competitors (2000): “An innovation market consists of the research and development directed to particular new or improved goods or processes and the close substitutes for that research and development.”

Input foreclosure (competition/antitrust economics).

OECD, Policy Roundtable Report, Economic Evidence in Merger Analysis (2011): “Input foreclosure occurs where [an] upstream merging party [in a merger] either stops supplying its input to the downstream competitors of the downstream merging party or supplies the input on less favourable terms, with the result that the downstream competitors face higher input costs, become less competitive and hence relax the competitive constraint on the downstream merging party. For this to lead to consumer harm it must be the case that there are not good substitutes available for the upstream merging party’s input (i.e. it has market power upstream) and that an increase in the cost of this input, or a refusal to supply it, leads to a reduction in competition downstream.”

Competition Bureau, Statement Regarding Proposed Mergers of Pork Producers and Hog Producers (2012): “This statement summarizes the approach taken by the Competition Bureau in its review of two proposed vertical mergers in the pork industry. On October 16, 2012, Olymel L.P. (Olymel) entered into an agreement to acquire Big Sky Farms Inc. (Big Sky), the largest independent hog producer in Western Canada, pursuant to a receivership sale process. On November 1, 2012, Maple Leaf Foods Inc. announced that it had agreed to acquire the Puratone Corporation, the second largest independent hog producer in Western Canada. […] Based on information obtained, the Bureau determined that due to the significant presence of Big Sky and Puratone in the upstream markets and the existence of barriers to entry and expansion in Western Canadian hog production, each of Olymel and Maple Leaf would likely have the ability and incentive post-transaction to harm certain rivals by foreclosing access to live hogs (input foreclosure). However, the Bureau concluded that input foreclosure, whether partial or complete, would be unlikely to result in a substantial lessening or prevention of competition because effective competition will remain downstream, including competition between Olymel and Maple Leaf.  The Bureau also determined that post-transaction each of Olymel and Maple Leaf would likely have the ability to harm rivals by foreclosing hog producers’ access to a sufficient customer base (customer foreclosure) as both control a significant amount of the slaughter capacity available to hog producers in one or more Western Canadian province. However, the information obtained from the parties and third parties indicated that neither Olymel nor Maple Leaf would have the incentive to foreclose rival hog producers from access to their slaughter facilities since the costs associated with limiting or ceasing the procurement of hogs from upstream rivals would likely exceed the gains from doing so, thereby rendering such a strategy unprofitable. The Bureau therefore concluded that it was unlikely that either transaction would result in a substantial lessening or prevention of competition through customer foreclosure.”

Inquiry (Canadian competition law).

The Competition Bureau can conduct informal or formal investigations of potential violations of the Competition Act.  Where the Bureau intends to conduct a formal investigation of a matter, it will commence an “inquiry”.  Under section 10 of the Competition Act, the Commissioner of Competition is required to commence an inquiry where: (1) a “six resident complaint” is made under section 9 of the Act (and the application formalities under that section are satisfied), (2) the Commissioner has “reason to believe” that (a) a person has violated an order under the Act, (b) grounds exist to make an order under Parts VII.1 or VIII of the Act (deceptive marketing and reviewable matters) or (c) an offence under Parts VI or VII has been (or is about to be) committed (criminal offences) or (3) where the Minister of Industry directs that an inquiry be commenced.  The significance of the Bureau commencing an inquiry is that once initiated, the Bureau has a number of enforcement powers available to it including obtaining section 11 orders (compelling an oral examination, the production of records and/or a written return under oath), wire-taps or search warrants (which can be obtained in relation to both criminal offences and civil “reviewable matters” under the Competition Act).

Competition Bureau, Complaint Process (Bureau website): “For complaints under the Competition Act, the information will be examined to determine whether a formal inquiry should be commenced. All inquiries are conducted in private. If an inquiry is opened, the Bureau may contact other customers or competitors to obtain more information.  During the inquiry stage, Bureau staff may use many tools at their disposal to determine the facts of the situation. They can apply for authorization from a court to search premises, examine or seize records, and question witnesses under oath.”

Insider reviews and consumer testimonials (advertising/marketing law term).

U.S. Federal Trade Commission (FTC): “[When] a company’s officers and managers [write] reviews or testimonials of its products or services, without clearly disclosing their relationships.”

For more information, see: Testimonials and Influencer Agreements.

Instant rebate (advertising/marketing law).

Competition Bureau, Enforcement Guidelines, Consumer Rebate Promotions (2009):  “Consumers receive the rebate at the time of purchase.  The rebate is generally available to anyone who purchases the product, without further condition.”

Instant win contest (Canadian contest/sweepstakes law).

A type of contest in which entrants are immediately notified whether they have won (as opposed to, for example, waiting for notification by e-mail, phone or mail).

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.

Insured contest (Canadian contest/sweepstakes law).

An “insured contest” is a contest in which a contest promoter has obtained insurance to cover the, usually remote, possibility that a winner wins a significant prize where the odds of winning are significant (i.e., in which it is unlikely that any entrant will win).

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.

Intellectual property.

Intellectual Property Institute of Canada (IPIC): “Patents, trade-marks, copyright, industrial designs and similar rights are referred to as ‘intellectual property’.  These rights are ‘property’ in the sense that they are based on the legal right to exclude others from using the property and in that ownership of the rights can be transferred.  The rights are ‘intellectual’ in the sense that they protect intangible subjects, usually arising out of some form of human creativity.   Patents protect inventions, such as machines, devices, methods and compositions of matter.  Trade-mark rights protect words, designs, numbers, two-dimensional or three-dimensional forms, sounds or colors (or a combination of two or more of these elements) used to distinguish the products or services of one trader from those of others in the marketplace.  Copyright protects literary (including computer programs), artistic, musical and dramatic works.  Related rights include trade secrets, industrial designs, integrated circuit topographies, plant breeders’ rights, and personality rights such as the right to the image.”

Intellectual property laws.

Competition Bureau, Intellectual Property Enforcement Guidelines (2000): “Intellectual property laws create legally enforceable private rights that protect to varying degrees the form and/or content of information, expression and ideas. The primary purpose of these laws is to define the scope of these rights and determine under what circumstances they have been infringed upon or violated. By protecting exclusive rights, the IP laws provide an incentive to pursue scientific, artistic and business endeavors which might not otherwise be pursued.”

Intellectual property rights are provided for in Canada by the following federal statutes: the Trade-marks Act, Copyright Act, Patent Act, Industrial Design Act, Integrated Circuit Topography Act and Plant Breeders’ Rights Act.  Various sections of the federal Competition Act are relevant to the exercise of IP rights including section 32 (special remedies relating to the exercise of IP rights), subparagraph 76(3)(c) (application of the resale price maintenance provisions to the exercise of IP rights) and subsection 79(5) (an exception to the abuse of dominance provisions for the mere exercise of IP rights).

The application of the Competition Act to the exercise of IP rights is, however, highly complex and largely untested in Canada, other than some limited case law under the conspiracy (section 45), refusal to deal (section 75) and abuse of dominance (sections 78 and 79) provisions.

The Competition Bureau’s Intellectual Property Enforcement Guidelines (2000) is the Bureau’s leading statement on its enforcement position with respect to the exercise of IP rights.

See also Competition Bureau, paper, “The Competition/Intellectual Property Interface – Present Concerns and Future Challenges” (2007); Competition Bureau, Competitor Collaboration Guidelines (2009). See also the following cases: Eli Lilly v. Apotex (conspiracy); Danaher/MDS; BASF/Ciba Holdings; Dow Chemical/Rohm and Hass Company; Shering-Plough/Organon; Akzo Nobel/Imperial Chemical Industries (mergers); NutraSweet; Tele-Direct; Interac; CREA; TREB (abuse of dominance); and Warner (refusal to deal).

Intentional interference with economic relations (tort law).

In addition to the Competition Act, plaintiffs in competition law related private actions in Canada can, and commonly do, plead a variety of economic torts, including interference with economic relations.

Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57: “The tort of intentional interference with economic interests aims to provide a remedy to victims of intentional commercial wrongdoing (Correia v. Canac Kitchens, 2008 ONCA 506, 91 O.R. (3d) 353, at para. 98; OBG Ltd. v. Allan, [2007] UKHL 21, [2008] 1 A.C. 1).  The three essential elements of this tort are: (1) the defendant intended to injure the plaintiff’s economic interests; (2) the interference was by illegal or unlawful means; and (3) the plaintiff suffered economic loss or harm as a result (see P.H. Osborne, The Law of Torts (4^th ed. 2011), at p. 336).”

Dale v. The Toronto Real Estate Board, 2012 ONSC 512: “The tort of interference with economic relations requires proof of: (1) an intent on the part of the defendant to injure the plaintiff; (2) interference with the plaintiffs’ living or business by the defendant by some unlawful means; and (3) damages suffered by the plaintiff as a result of the actions of the defendant.”

Fournier Leasing Co. v. Mercedes-Benz Canada Inc., 2012 CarswellOnt 6068 (Ont. Sup. Ct.): “The tort of intentional interference with economic interests has the following elements: an intention by the defendant to injure the plaintiff; interference with the plaintiff’s method of gaining its living or business by illegal or unlawful means; and economic loss suffered as a result.  The actions of the defendant must have been targeted against the plaintiff: Lineal Group Inc. v. Atlantis Canadian Distributors Inc. (1998), 42 O.R. (3d) 157 (Ont. C.A.).”

See also Reach M.D. Inc. v. Pharmaceutical Manufacturers Assn. of Canada et al, [1999] O.J. No. 2853 (S.C.J.); Drouillard v. Cogeco Cable Inc. 2007 ONCA 322 (CanLII), (2007), 86 O.R. (3d) 431 (C.A.); Correia v. Canac Kitchens 2008 ONCA 506 (CanLII), (2008), 91 O.R. (3d) 353 (C.A.).

Interlocking directorate (Canadian merger law).

The Competition Bureau considers, among other things, whether an “interlocked director” has the ability to “materially influence” the economic behavior of another firm in a merger (the Competition Act defines “merger” to include acquisitions of a “significant interest”, which the Bureau interprets as the ability to “materially influence the economic behavior of the target business”).

Competition Bureau, Merger Enforcement Guidelines:  “[a]n interlocking directorate may arise where a director of one firm is an employee, executive, partner, owner or member of the board of directors of a second firm, or has another interest in the business of the second firm. An interlocking directorate is generally of interest under section 92 of the Act only when the interlocked firms are competitors, are vertically related, or produce complementary or related products. … When assessing whether an interlocked director has the ability to materially influence the economic behaviour of the interlocked firm(s), the Bureau’s focus is typically on the access that an interlocked director has to confidential information, and on the director’s voting and veto rights in the context of the board composition, quorum and voting rules, including attendance and historical voting patterns.”

Internal do not contact list (telemarketing).

Canadian Marketing Association, Code of Ethics and Standards of Practice: “A list of current customer, consumer or business contact information of those persons or businesses who have requested that they not be contacted by the marketer’s organization.  It is used to cross-reference and purge that information from any list to be used for any marketing campaign by that organization.  Often referred to as an ‘internal deletion list’, this Code requires that internal do not contact lists must be maintained by every organization that markets for every channel by which they market and that the information must be retained on the list for three years.”

Inventory loading (pyramid selling schemes).

Section 55.1 of the Competition Act makes pyramid selling schemes a criminal offence.  Section 55.1 defines a pyramid selling scheme as a multi-level marketing plan (as defined under the Act) that has one or more prescribed features, including knowingly supplying product to participants in commercially unreasonable quantities (i.e., “inventory loading”).

Competition Bureau, Enforcement Guidelines, Multi-level Marketing Plans and Schemes of Pyramid Selling: Sections 55 and 55.1 of the Competition Act (2009): “Paragraph 55.1(1)(c) of the [Competition Act] defines a scheme of pyramid selling as those situations in which an operator or a participant in an MLM plan supplies products to participants in amounts that he or she knows are commercially unreasonable.  In other words, there can be no inventory loading.  The amount considered ‘commercially unreasonable’ is based on considerations such as: the type of product; the selling price of the product; the size of the market; the number of participants; the number of competitors; and the sales history of the products.”

Goldman, C.S. and J.D. Bodrug, eds., Competition Law of Canada, 2 volumes, looseleaf (New York: Juris, 1988 – ): “It is also contrary to the [Competition Act] for an operator to supply a product to the participant in amounts that are commercially unreasonable.  This is a practice known as inventory loading.  The determination of what is commercially unreasonable will be based on such factors as the type of product, the selling price, the size of the market, the number of participants, the number of competitors and the sales history of the product.”

Investment Schemes (fraud).

Canadian Department of Justice, Report of the Canada – United States Working Group on Telemarketing Fraud (Updated December 1, 2011): “Victims are sold ‘investments’ in a wide range of merchandise or securities that appear to offer high profit-margins.  The fraud lies in misrepresenting the true value (or actual existence) of what is being sold, and/or the true extent of the risk in buying it.  Common ‘opportunities’ have involved stocks or securities, investment-grade gemstones, precious or strategic metals or minerals, and business opportunities such as oil and gas ventures, pizza ovens, and ostrich farms.  These schemes commonly defraud victims more than once (see ‘reloading’, below).  Once funds have been committed, the victim can be induced to make additional payments to increase the value of the ‘investment’ or avoid its loss (e.g., ‘margin calls’).  Since legitimate investments normally tie up assets for extended periods, victims often do not realize for some time that they have been defrauded.”

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