Canadian COMPETITION LAW

Obstruction (criminal competition law).

Obstruction of an inquiry or examination under the Competition Act is a criminal offence, with the potential for “unlimited” fines (i.e., in the discretion of the court), imprisonment for up to 10 years, or both (s. 64 of the Competition Act). Failure to comply with investigatory orders or search warrants is also a criminal offence, with potential penalties of unlimited fines (i.e., in the discretion of the court), imprisonment for up to two years, or both (s. 65(1)).

The destruction or alteration of records that are sought by the Bureau is yet another criminal offence, with the potential for unlimited fines (i.e., in the discretion of the court), imprisonment for up to 10 years, or both (s. 65(3)).

See also Competition Bureau, Information Bulletin on Sections 15 and 16 of the Competition Act: “Any attempt to impede and/or prevent the execution of a search warrant, and any attempt to remove or destroy records subject to a search warrant will be taken very seriously by the Commissioner. Pursuant to section 64 of the Act, it is an offence to impede or prevent or to attempt to impede or prevent any inquiry or examination under the Act. Subsection 65(1) of the Act provides that where a search warrant has been issued under the Act, it is an offence to refuse to allow the Commissioner or Bureau staff named in the warrant, to enter and search the premises, including any computer system found on the premises. A person convicted under either of these provisions is liable to a maximum fine of $5,000 or two years in prison or both.  Under subsection 65(3), every person who destroys or alters (or causes to be destroyed or altered) a document or other thing covered by a search warrant is guilty of an offence and may be liable to a penalty of up to five years in prison and a $50,000 fine or both.  Where a corporation commits an offence under section 65, any officer, director or agent of the corporation who directed, authorized, assented to, acquiesced in or participated in the commission of the offence is a party to and guilty of the offence and is liable to the punishment provided for the offence whether or not the corporation has been prosecuted or convicted. In addition, where circumstances warrant, the obstruction of justice provision found in the Criminal Code (section 139) may also be used.”

Oligopoly.

OECD, Policy Roundtable, Oligopoly (1999), Overview: “Oligopolies are markets where profit maximizing competitors set their strategies by paying close attention to how their rivals are likely to react.  In these conditions, firms might differentiate their products, which can benefit some consumers, but at a price.  Oligopoly inter-dependence can also foster anti-competitive co-ordination.  Competition laws prohibit collusion that raises prices, restricts output or divides markets.  But the laws do not prohibit conscious parallelism.  Thus firms in an oligopoly might imitate their rivals’ pricing and other competitive behavior in a process that harms consumer welfare, yet without reaching an explicit agreement.”

OECD, Policy Roundtable, Oligopoly (1999), citing Clamp-All Corp. v. Cast Iron Soil Pipe Institute, 851 F.2d 478, 484 (1^st Cir. 1988) (Breyer J.) and Richard A. Posner, “Oligopoly and the Antitrust Laws: A Suggested Approach”, 21 Stan. L. Rev. 1562, 1566 (1969): “‘… a market structure with a small number of sellers – small enough to require each seller to take into account its rivals’ current actions and likely future responses to its actions.’  Recognized interdependence is the hallmark of oligopoly.’”

Oligopsony power.

Competition Bureau, Competitor Collaboration Guidelines (2009) at p. 33: “Oligopsony power occurs where a market power in the relevant purchasing market is exercised by a coordinated group of buyers.”

See also definition of “monopsony power”.

Online Behavioural Advertising (advertising/marketing law). 

One form of Internet advertising.

Office of the Privacy Commissioner of Canada, Policy Position on Online Behavioural Advertising:  “In this case, an advertising service places an advertisement on a webpage based on tracking data collected across multiple unrelated websites. This practice refers to using information about where a user has been.  For example if a user has visited websites about pets in the past, then ads related to pets might be shown on various web sites, even sites that are not related to pets (e.g., an online newspaper).”

Online romance scam (fraud).

Consumer Protection BC, “Top Ten Scams 2013 – Just in case a scam is around the corner”:  “You meet the person virtually through a social networking or dating site.  Your online romance scammer builds a relationship, sometimes spending several months in building a rapport online with the intention of making you feel that you are in a romantic relationship.  The person you met online turns out to be criminal who typically says that they are in a far away country and that they eventually want to meet the victim in person.  Around this time, the criminal will note that they can’t afford to travel and will seek assistance from you in covering travel costs.  Sometimes there’s an emergency, a sick family member for example, and that they need financial help from you to visit the sick individual.  Of course, the requests for help are all a scam and the money wired by the victim, often in very large amounts, is now in the hands of the criminal.”

Open loop gift card (Canadian consumer protection law).

Financial Consumer Agency of Canada: “There are two main types of prepaid cards.  Both require you to pay up front to ‘load’ money on to a card for later use and both are sometimes referred to as ‘gift cards’.  Prepaid cards from retailers can only be used at a single store or group of stores, such as a chain or shopping mall.  Other prepaid cards, usually branded with a payment card network operator’s logo, such as American Express, MasterCard or Visa, can be used at most merchants that display the specific network’s logo.”

Datacard Group: “A gift card is a type of stored-value payment card commonly issued by retailers and banks.  Gift cards are preloaded with a set value.  There are two major types of cards – those that can be used only at one store chain or one location (closed loop) and those that can be used anywhere (open loop).  Closed loop gift cards generally carry no fees or expiration date – the issuing store makes its money off the profit from selling merchandise.  Open loop gift cards always carry fees.  Because they are issued by banks or credit card transaction processors, such as Visa or MasterCard, fees are the only way they can profitably issue gift cards.”

Ontario Consumer Protection Act Regulations: “’Open loop gift card agreement’ means a gift card agreement that entitles the holder of a gift card to apply it towards purchasing goods or services from multiple unaffiliated sellers.”

Oral consent (Canadian anti-spam law (CASL)).

In general, Canada’s federal anti-spam legislation (CASL) requires that senders of unsolicited commercial electronic messages (CEMs) to Canadians have either express or implied consent from recipients, unless an exception under CASL applies. Express consent can be gathered from recipients under CASL either in writing or orally. Written consent may include both paper and electronic forms (examples of the latter include a box on a web page or filling out a consent form at point-of-purchase). The CRTC’s view is that oral consent is sufficient if: (i) it can be verified by an independent third party; or (ii) where there is a complete and unedited audio recording of the consent. In either case, the onus is on the sender to prove that they had consent to send CEMs. It is very important for electronic marketers to carefully review the requirements for each type of consent (whether express or implied) or exemption under CASL, as CASL sets out very specific requirements for each.

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.

Ordinary selling price claims (Canadian advertising/marketing law).

Competition Bureau, Misleading Advertising and Labelling: “The false or misleading ordinary selling price provisions of the Competition Act are designed to ensure that when products are promoted at sale prices, consumers are not misled by reference to inflated regular prices.  The Act prohibits false or misleading representations to the public as to the ordinary selling price of a product, in any form whatsoever.  Ordinary selling price is validated in one two ways: either a substantial volume of the product was sold at that price or higher, within a reasonable amount of time (volume test); or the product was offered for sale, in good faith, for a substantial period of time at that price or a higher price (time test).”

For more information, see: Ordinary Selling Price Claims and Sale Claims. See also: Advertising Law,  Advertising Law FAQs and Misleading Advertising.

Overcharge (conspiracy/cartel law).

A measure of injury used in competition/antitrust cases.

See e.g., P.L. Anderson et al., “Damages in Antitrust Cases”, AEG Working Paper 2007-2: “The economic effects on consumers and producers are reflected in two legal measures of damages.  Determining the appropriate legal measure of damages depends on the nature of the alleged restraint on competition.  In price fixing cases under Section 1 of the Sherman Act and monopolization cases under Section 2 [of the Sherman Act] cartel members collude or a monopolist withholds output in an effort to increase profits, which causes consumers to pay higher prices.  This is commonly called ‘overcharge’ injury.”  There are other uses of ‘overcharge’ as well: the seller’s injury when a buyer’s cartel suppresses the price; and the buyer’s injury when they purchase a product that has been illegally ‘tied’ to another product or service. …”

For more information, see: Conspiracy and Conspiracy FAQs.

Overlap (competition/antitrust law market definition).

“Overlap” is a colloquial term or shorthand way of referring to product or geographic markets in which both parties in a merger have a presence (i.e., potential areas of post-merger concentration that may lead to anti-competitive effects).

See also the definitions of “geographic market definition”, “market definition”, “market share”, “product market definition” and “substantial lessening of competition”.

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