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Competition Law – A Sword and a Shield – Part II

Last month, I outlined the serious criminal offences under the Competition Act (Canada) (the “Act”), describing the nature of the offences and penalties therefore.

This month’s article will focus upon the civil, i.e., non-criminal law, remedies available as competitive weapons to a business in Canada.

First a word about terminology. I discovered that the terms, “Branch” and “Bureau” are not interchangeable. The Bureau is organized into separate Branches which deal with the provisions of the legislation covering Civil Matters, Criminal Matters, Mergers and Fair Business Practices. There are two coordinating Branches – Compliance and Operations, and Competition Policy Branch.

The Competition Bureau states that its administration and enforcement:

is based on five principles: confidentiality, fairness, predictability, timeliness, and transparency.

Thus, at the outset, it is important to know that your involvement, either as a complainant or alleged offender, is kept confidential by the Bureau, unless otherwise revealed to the public (e.g., press releases or leaks by one of the parties).

Let’s look at these civil remedies, in reverse order of formality and level of engagement.

Advisory Opinions

This is a relatively expeditious and low-cost method of vetting your complaint or proposed activity.

A business can ask the Bureau for an “Advisory Opinion” on whether a proposed business action would raise concerns under the legislation enforced by the Bureau. The Advisory Opinion is based upon, and subject to the information submitted by the party. Therefor, the submission to the Bureau should be very carefully crafted to ensure that all salient points of fact and law are covered. The Bureau charges a fee for an Advisory Opinion.

Alternative Case Resolution

Many cases taken to the Bureau are resolved without resort to the courts. After a factual/economic investigation is conducted, the Bureau can seek an undertaking from the investigated party to adopt certain practices to correct the result of the anti-competitive behaviour. The Bureau can also contact the party causing the problem, to “explain the legislation and its potential application to their situation.” (i.e., conduct a fireside chat with the offending business so they understand the possible ramifications of continuing their actions – sounds ominous, doesn’t it?).

Formal Proceedings

Formal proceedings at the Competition Tribunal can be initiated by the Competition Bureau. It is only serious or important cases that appear to have a good chance of winning which will be taken to the Competition Tribunal by the Bureau. Though the Competition Tribunal is not a court per se, its practice and procedure are relatively formal, and defending a claim there can be ruinously expensive for a business. It is unlikely that the Bureau would pursue a matter to the Tribunal unless the offending party refused all attempts at prior informal resolution.

Generally speaking, a complainant cannot initiate proceedings at the Tribunal. However, Bill C-23 came into force last summer, and it provided for private access to the Tribunal with the leave or authorization of the Tribunal for certain matters.

The Tribunal can also now hear references, being the determination of a specific aspect of a situation or an interpretation of law. The reference can be commenced by the mutual agreement of the Commissioner under the Act and the investigated party for specified types of questions (reviewable deceptive marketing practices and

The Tribunal can also award costs and make summary dispositions where a case is found to be without merit (to discourage frivolous cases).

Bill C-23 has thereby opened up the civil process for small and medium-sized businesses so that private or local matters can be addressed.

Grant can be reached at 905-847-9707


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