Canadian COMPETITION LAW

Wage-fixing agreement (a Canadian conspiracy/cartel law offence).

A wage-fixing agreement is an agreement between employers or competing employers (depending on the jurisdiction) to keep wages, salaries or other benefits at a certain level or within a certain range. It is a type of price fixing and may be illegal in a number of jurisdictions, including Canada. On June 23, 2022, Canada’s federal Competition Act was amended to prohibit wage-fixing and no-poaching agreements between employers (under section 45(1.1) of the Competition Act). Wage-fixing and no-poaching agreements are now per se criminal conspiracy offences subject to fines in the discretion of the court (i.e., without statutory limit), imprisonment for up to 14 years, or both. These amendments came into force on June 23, 2023. Canada’s Competition Bureau has also issued Enforcement Guidelines on wage-fixing and no poaching agreements between employers (Enforcement Guidelines on wage-fixing and no poaching agreements and included compliance guidance regarding wage-fixing and no-poaching agreements in its online Compliance Hub – see: Wage-fixing and no-poaching agreements.

Waiting period (Canadian merger control law).

Mergers in Canada that are notifiable under the Competition Act are subject to mandatory waiting periods, during which merging parties are prohibiting from completing subject to the expiry of the relevant waiting period or clearance.

Competition Bureau, Merger Review Process Guidelines: “Where a proposed transaction surpasses the “party-size” and “transaction-size” thresholds set out in sections 109 and 110 of the Act, parties are required to notify the Commissioner prior to completing the proposed transaction.³ Notifiable transactions are subject to an initial 30-day waiting period, and where a SIR is issued, are further subject to a second 30-day waiting period.”

Waiver (Competition Bureau Immunity and Leniency Programs / merger control).

The Competition Bureau requires applicants in its Immunity Program to consent to the disclosure of information to foreign law enforcement agencies.

Competition Bureau, Immunity Program: Frequently Asked Questions: “… the Bureau will not share the identity of an immunity applicant, or the information provided, with a foreign law enforcement agency unless the immunity applicant provides a waiver giving the Bureau consent to do so. It is important to note that this confidentiality protection is an added benefit to being first–in under the Immunity Program. However, as part of an applicant’s ongoing co-operation, the Bureau will expect a waiver allowing communication of information with jurisdictions to which the applicant has made similar applications for immunity or leniency.”

[Mergers]: International Competition Network (ICN), “Waivers of Confidentiality in Merger Investigations”:  “Confidentiality laws typically limit the type of information that reviewing agencies can share with one another. When a merger is subject to review by more than one agency, the merging and other interested parties may conclude that it is in their interest to waive confidentiality protections because they believe this may increase the likelihood of consistent analyses and compatible enforcement decisions. Waivers typically allow the agencies to share parties’ information and to discuss the information while maintaining its confidentiality with respect to other interested parties and the public.   Confidentiality waivers can facilitate cooperation among the agencies and coordination of their investigations and enforcement decisions.  Coordination is particularly appropriate and useful when the reviewing agencies have common enforcement interests, such as in cases in which their investigations focus on the same markets.  Waivers of confidentiality enable more complete communication between the reviewing agencies and with the merging parties regarding evidence that is relevant to the investigation.”

Waiver of tort.

Koubi v. Mazda Canada Inc., 2012 BCCA 310 (BCCA): “Waiver of tort is a restitutionary doctrine that permits a plaintiff to recover benefits a defendant has obtained by its wrongdoing instead of damages measured by the plaintiff’s loss … [Waiver of tort] has been embraced in class actions and the doctrine has experienced a resurgence in that context, since it may be used to present damages as a common issue based on benefits obtained by the defendant through its wrongful conduct, thereby avoiding individual proof of loss by each class member.”

Serhan v. Johnson & Johnson (2006), 85 O.R. (3d) 665, 269 D.L.R. (4^th) 279 (Div. Ct.), per Justice Epstein: “I start with an explanation of the concept of waiver of tort. Its origin lies in the expression “waiver of tort and suit in assumpsit”, the latter being the historical antecedent of many modern common law “quasi-contract” restitutionary claims. In invoking waiver of tort, the plaintiff gives up the right to sue in tort and elects to base the claim in restitution, thereby seeking to recoup the benefits the defendant has derived from his wrongful conduct. The practical purpose behind it is that in certain situations, where a wrong has been committed, it may be to the plaintiff’s advantage to seek recovery of an unjust enrichment accruing to the defendant rather than normal tort damages.”

Fournier Leasing Co. v. Mercedes-Benz Canada Inc., 2012 CarswellOnt 6068 (Ont. Sup. Ct.): “In waiver of tort, the plaintiff gives up the right to sue in tort but seeks to recover on the basis of restitution, claiming the benefits the wrongdoer has derived from the wrongful conduct regardless of whether the plaintiff has suffered damages or not: Aronowicz v. EMT-WO Properties Inc., 2010 ONCA 96 (Ont. C.A.).”

Peter D. Maddaugh and John D. McCamus, The Law of Restitution, looseleaf (Aurora: Canada Law Book, 2009), Chapter 24, “Waiver of Tort”, at 24-2: “Although we have chosen to discuss the doctrine in its classical context, we are of the view that it is not necessary to establish an actionable tort as a prerequisite to bringing a restitutionary claim.  We argue that the doctrine is simply one example of a more general principle to the effect that an action in restitution lies to compel a defendant to disgorge an unjust enrichment gained through any type of wrongdoing, such as breach of a statutory duty …, breach of contract …, breach of fiduciary duty …, or any other act that constitutes a wrong in equity … In other words, the restitutionary claim is not ‘parasitic’ to the breach of some antecedent legal duty, but rather stands as an independent cause of action. Hence, the doctrine is included in this group of chapters under Topic IV as one of several illustrations of the general restitutionary principle that ‘a wrongdoer ought not be permitted to profit from wrongdoing’”.

Web crawler.

Government of Canada, Canada’s Anti-Spam Legislation (www.fightspam.gc.ca), FAQs:  “… computer programs that scan websites, usenet groups and social networking sites, trolling for posted electronic addresses.”

Webpage contextual advertisements.

One form of Internet advertising.

Office of the Privacy Commissioner of Canada, Policy Position on Online Behavioural Advertising:  “In this advertising model, an advertisement is delivered based on the content of a particular webpage. For example, when an individual visiting a website about pets goes to a webpage on that site about puppies, they would see ads about dogs. If that individual then goes to a webpage on that site about kittens, they would see ads about cats.”

West African scam (aka 419 scam, Nigerian scam or advance fee fraud).

Competition Bureau, The Little Black Book of Scams (2012): “The Nigerian scam (also called the 419 fraud) has been on the rise since the early-to-mid 1990s in Canada. Although many of these sorts of scams originated in Nigeria, similar scams have been started all over the world (particularly in other parts of West Africa and in Asia). These scams are increasingly referred to as ‘advance fee fraud’.  In the classic Nigerian scam, you receive an email or letter from a scammer asking your help to transfer a large amount of money overseas. You are then offered a share of the money if you agree to give them your bank account details to help with the transfer. They will then ask you to pay all kinds of taxes and fees before you can receive your ‘reward’. You will never be sent any of the money, and will lose the fees you paid.”

RCMP, Internet Security: “Fraud letters from Nigeria (and other African countries) is a type of scam that has been around for a number of years. Businesses, educational institutions and government departments were originally the prime targets of electronic messages bearing the promise of substantial amounts of money from alleged government or company officials in Nigeria. The general public is now also targeted, and thousands of people like you receive similar e-mail messages in their personal mail boxes. In some cases, con artists even send stolen or forged cheques to their victims. This scam can also be done by phone and from many countries. In addition to money you can be asked for confidential information against the promise of profits.”

Joewein.de LLC: “The so-called ‘419’ scam (aka ‘Nigeria scam’ or ‘West African’ scam) is a type of fraud named after an article of the Nigerian penal code under which it is prosecuted. It is also known as ‘Advance Fee Fraud’ because the common principle of all the scam format is to get the victim to send cash (or other items of value) upfront by promising them a large amount of money that they would receive later if they cooperate. In almost all cases, the criminals receive money using Western Union and MoneyGram, instant wire transfer services with which the recipient can’t be traced once the money has been picked up. These services should never be used with people you only know by email or telephone!  Typically, victims of the scam are promised a lottery win or a large sum of money sitting in a bank account or in a deposit box at a security company. Often the storyline involves a family member of a former member of government of an African country, a ministerial official, an orphan or widow of a rich businessman, etc. Variants of the plot involving the Philippines, Taiwan, China, Hong Kong, Korea, Iraq, Kuwait, UAE, Mauritius, etc. are also known. Some emails include pictures of boxes stuffed with dollar bills, scans of fake passports, bank or government documents and pictures of supposedly the sender.”

Whistleblower (competition/antitrust law enforcement).

Ralph Nadar: “An act of a man or a woman who, believing in the public interest overrides the interest of the organization he serves, publicly blows the whistle if the organization is involved in corrupt, illegal, fraudulent or harmful activity”.

International Competition Network, Anti-Cartel Enforcement Manual, Chapter 4: “A whistleblower may be an employee who is aware that his/her employer is a member of [a] cartel, but was not personally involved.  A whistleblower would normally ask that his/her identity be protected as far as possible out of fear of victimization and, similarly to an informant, the decision to report on a particular cartel can risk his/her continued employment and/or status and reputation within a particular organization or industry.  Some jurisdictions provide whistleblowers who disclose information with legal protection from victimization and dismissal from employment as a result of their disclosures.”

Competition Bureau, Whistleblowing Initiative: “A whistleblower is a person who voluntarily provides information to the Bureau about a possible violation of the Act that has occurred, is occurring or is about to occur.  Section 66.1 of the [Competition Act] includes specific provisions protecting the identity of a whistleblower.”

Editorial in The Independent of London, on the arrest of Tory M.P. Damian Green for suspicion of leaking documents (November 29, 2008): “There is no law, no system, no set of regulations which can more effectively hold governments to account than the conscience of man.  Opposition parties, the public and the press rely on individuals, not systems, to tell us what those who rule over us would like us not to know.  We call them ‘whistleblowers’ because, like referees, they seek to keep the players in our political system in check.”

In Canada, the federal Competition Act contains specific whistleblower protections.  In this regard, section 66.1 of the Act provides that any person with “reasonable grounds” to believe that a person has committed an offence under the Act may notify the Commissioner [of Competition] and request that his/her identity be kept confidential.  Section 66.2 further provides that no employer shall dismiss, suspend, demote, discipline, harass or otherwise disadvantage an employee (or deny an employee a benefit of employment) based on the fact that the employee, acting in good faith and on the basis of reasonable belief: (i) reported an offence committed by the employer or other person, (ii) refused to do anything that is an offence under the Act, or (iii) took steps to avoid an offence under the Act.  The Competition Bureau also takes the position that an effective competition law compliance program should include a reporting mechanism that, among other things, should “educate employees who are in a position to engage in, or be exposed to, conduct in potential breach of the [Competition Act] on the Bureau’s Immunity Program and the whistleblowing provisions …” of the Act.

For more information, see: Competition Act Whistleblowers.

White collar crime.

Edwin Sutherland (criminologist and sociologist) (1939): “committed by a person of respectability and high social status in the course of his occupation.”

“Wide” most-favoured-nation (MFN) clause (competition law term).

Most favored nation (MFN) clauses are where a seller of a product or service generally agrees to provide the product/service to a buyer at a price that is no higher than that paid by another buyer (or buyers). There are a number of different type of MFN clauses, which include “wide” and “narrow” MFN clauses (which are also sometimes referred to as “parity” clauses). “Wide” MFN clauses in a supply agreement typically stipulate that the product/service cannot be offered by the seller on better terms on any other sales channels (e.g., on the supplier’s own website or through other intermediary sellers, such as distributors or on online platforms). “Narrow” MFN clauses are where a seller of a product/service agrees that only better terms will not be offered on a party’s own sales channel (e.g., on the supplier’s own website). “Narrow” MFN clauses do not, however, specify the conditions for sales on other sales channels. For more information, see: Most-favored-nation (MFN) clause.

Winner release form (Canadian contest/sweepstakes law).

A winner release form is commonly one of several documents used for the operation of promotional contests in Canada (and other countries), together with short rules (mandatory point-of-purchase disclosure) and long rules (containing the more detailed entry and eligibility requirements for the contest).

A winner release form commonly includes a declaration by the entrant of contact information, age, residency status, compliance and comprehension with the rules of the contest, no relationship with the contest sponsor and various releases depending on the nature of the contest – for example, to accept the prize as awarded, be responsible for any taxes associated with the prize awarded, release the sponsor from liability and, for promotional contests involving the creation of original material (i.e., skill contests involving the judging of artwork, video, or other talent exercises) transferring rights to the original material to the sponsor and granting the sponsor the right to use and reproduce it.

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.

Word-of-mouth marketing.

Canadian Marketing Association, Code of Ethics and Standards of Practice: “Also sometimes referred to as ‘buzz’ marketing, word-of-mouth marketing is capturing the attention of consumers and the media to generate favourable word of mouth about a brand, product, service or organization.”

Written opinion (Canadian competition law).

Under section 124.1 of the Competition Act, any person may apply to the Commissioner of Competition, together with supporting information, for a binding written opinion regarding the application of any provision of the Act.  Written opinions can be a practical way for businesses and individuals to reduce potential competition law liability for proposed conduct.

A written opinion is binding on the Commissioner if all material facts relating to the proposed conduct have been submitted.  If issued, written opinions remain binding for as long as the material facts on which they are based remain substantially unchanged and the conduct is carried out substantially as proposed.  Binding written opinions are available, subject to the Commissioner’s discretion to issue them, for proposed conduct only.

In other words, the Bureau will not issue advisory opinions for existing business conduct.  Written opinions are available under the following provisions of the Act, among others: resale price maintenance (section 76), exclusive dealing / tied selling / market restriction (77), abuse of dominance (79), civil agreements provision (90.1), conspiracy (45), misleading advertising and deceptive marketing practices (52, 55.1, 74.01, 74.06), deceptive telemarketing (52.1), deceptive prize notices (53), multi-level marketing and pyramid selling (55 and 55.1), performance claims (74.01(1)(b)) and promotional contests (74.06).

For more information, see: Competition Bureau Advisory Opinions.

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

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, 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