Coming into Force
Marginal note:Order in council
406. Sections 394 and 399 to 405 come into force on a day to be fixed by order of the Governor in Council.
Marginal note:R.S., c. C-34; R.S., c. 19 (2nd Supp.), s. 19
Amendments to the Act
Marginal note:2000, c. 15, s. 11
408. Subsection 5(1) of the Act is replaced by the following:
5. (1) Section 45 does not apply in respect of an agreement or arrangement between persons who are members of a class of persons who ordinarily engage in the business of dealing in securities or between such persons and the issuer of a specific security, in the case of a primary distribution, or the vendor of a specific security, in the case of a secondary distribution, if the agreement or arrangement has a reasonable relationship to the underwriting of a specific security.
Marginal note:1999, c. 2, s. 11(4)
409. Subsection 34(6) of the Act is replaced by the following:
Marginal note:Punishment for disobedience
(6) A court may punish any person who contravenes an order made under this section by a fine in the discretion of the court or by imprisonment for a term not exceeding five years.
Marginal note:R.S., c. 19 (2nd Supp.), ss. 30 and 31; 1991, c. 47, s. 714
410. Sections 45 and 45.1 of the Act are replaced by the following:
Marginal note:Conspiracies, agreements or arrangements between competitors
45. (1) Every person commits an offence who, with a competitor of that person with respect to a product, conspires, agrees or arranges
(a) to fix, maintain, increase or control the price for the supply of the product;
(b) to allocate sales, territories, customers or markets for the production or supply of the product; or
(c) to fix, maintain, control, prevent, lessen or eliminate the production or supply of the product.
(2) Every person who commits an offence under subsection (1) is guilty of an indictable offence and liable on conviction to imprisonment for a term not exceeding 14 years or to a fine not exceeding $25 million, or to both.
Marginal note:Evidence of conspiracy, agreement or arrangement
(3) In a prosecution under subsection (1), the court may infer the existence of a conspiracy, agreement or arrangement from circumstantial evidence, with or without direct evidence of communication between or among the alleged parties to it, but, for greater certainty, the conspiracy, agreement or arrangement must be proved beyond a reasonable doubt.
(4) No person shall be convicted of an offence under subsection (1) in respect of a conspiracy, agreement or arrangement that would otherwise contravene that subsection if
(a) that person establishes, on a balance of probabilities, that
(i) it is ancillary to a broader or separate agreement or arrangement that includes the same parties, and
(ii) it is directly related to, and reasonably necessary for giving effect to, the objective of that broader or separate agreement or arrangement; and
(b) the broader or separate agreement or arrangement, considered alone, does not contravene that subsection.
(5) No person shall be convicted of an offence under subsection (1) in respect of a conspiracy, agreement or arrangement that relates only to the export of products from Canada, unless the conspiracy, agreement or arrangement
(a) has resulted in or is likely to result in a reduction or limitation of the real value of exports of a product;
(b) has restricted or is likely to restrict any person from entering into or expanding the business of exporting products from Canada; or
(c) is in respect only of the supply of services that facilitate the export of products from Canada.
(6) Subsection (1) does not apply if the conspiracy, agreement or arrangement
(a) is entered into only by companies each of which is, in respect of every one of the others, an affiliate; or
(b) is between federal financial institutions and is described in subsection 49(1).
Marginal note:Common law principles — regulated conduct
(7) The rules and principles of the common law that render a requirement or authorization by or under another Act of Parliament or the legislature of a province a defence to a prosecution under subsection 45(1) of this Act, as it read immediately before the coming into force of this section, continue in force and apply in respect of a prosecution under subsection (1).
(8) The following definitions apply in this section.
« concurrent »
“competitor” includes a person who it is reasonable to believe would be likely to compete with respect to a product in the absence of a conspiracy, agreement or arrangement to do anything referred to in paragraphs (1)(a) to (c).
« prix »
“price” includes any discount, rebate, allowance, price concession or other advantage in relation to the supply of a product.
Marginal note:Where application made under section 76, 79, 90.1 or 92
45.1 No proceedings may be commenced under subsection 45(1) against a person on the basis of facts that are the same or substantially the same as the facts on the basis of which an order against that person is sought by the Commissioner under section 76, 79, 90.1 or 92.
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