After being expeditiously passed by both houses of Parliament, Bill C-10 has received royal assent and is now law. In light of this development, businesses are recommended to undertake a number of actions, including reviewing and appropriately revising their pricing policies in light of the decriminalization of price discrimination, predatory pricing, discriminatory promotional allowances and resale price maintenance.
Prime Minister Stephen Harper’s Conservative government has followed through with its pre-election promises to amend Canada’s competition and foreign investment laws. The changes to the Competition Act envisaged by Bill C-10 are the most significant changes to the statute in decades.
In 2007 the Competition Bureau's initiatives of general application included the issue of its revised Information Bulletin: Communication and Treatment of Information under the Competition Act and the appointment of the Competition Policy Review Panel to conduct a review of Canada’s competition and foreign investment laws.
Following public consultations in October 2007, the Competition Bureau has formally revised its immunity programme. Originally launched in September 2000, the immunity programme offers immunity from prosecution to parties that have contravened the criminal provisions of the Competition Act (eg, conspiracy) in return for their cooperation.
The Competition Bureau has issued a technical bulletin on regulated conduct which outlines the commissioner's general approach to the enforcement of the Competition Act with respect to conduct that may be regulated by another federal, provincial or municipal law or legislative regime and, as a corollary to the bureau's approach, addresses the bureau's treatment of the regulated conduct doctrine.
The Federal Court of Appeal has recently discussed the appropriate standards for identifying exclusionary conduct and evaluating the conduct of dominant firms in Canada Pipe. The court set aside the Competition Tribunal decision on the basis that the tribunal had applied the incorrect legal tests for determining what constitutes an anti-competitive act and a substantial prevention or lessening of competition.
In 2006 record fines were imposed for a domestic conspiracy involving Cascades Fine Papers Group Inc, Domtar Inc and Unisource Canada Inc. All three parties pleaded guilty before the Ontario Superior Court of Justice to two counts of conspiring to lessen competition unduly in contravention of Section 45 (conspiracy) of the Competition Act.
Two of Quebec's main suppliers of light-emitting diodes (and two of their directors) have been charged with bid rigging following an investigation by the Competition Bureau. The charges stem from a call for tenders by Quebec City in which the bureau alleges that the parties entered into an illegal agreement to share the contract.
The regulated conduct defence has been established by jurisprudence providing that certain provisions of the Competition Act do not apply to conduct that is required, or in some cases authorized, by other validly enacted legislation. However, this jurisprudence has left many questions outstanding regarding the scope of the defence.
During 2005 the Competition Bureau and Tribunal took further steps regarding the review of conduct. Among other activities, the tribunal released its first decison under the new Competition Tribunal Rules in respect of the abuse of dominance and exclusive dealing provision, and the bureau revised its Information Bulletin on Private Access to the Competition Tribunal.
Last year saw further convictions being obtained in respect of the Competition Bureau's long-running international graphite electrodes cartel investigation. In addition, the bureau issued "Immunity Programme: Responses to Frequently Asked Questions", which describes the immunity process and addresses common questions.
One of the key developments in the area of mergers in 2005 was the issuance by the Competition Bureau of the draft Information Bulletin on Merger Remedies in Canada. The bulletin is a welcome initiative as it increases transparency and will contribute to the efficiency and consistency of the merger review process.