An Act to amend the Competition Act and the Competition Tribunal Act (S.C. 2002, c. 16)
Full Document:
Assented to 2002-06-04
Marginal note:1999, c. 2, s. 22
11. Sections 74.12 and 74.13 of the Act are replaced by the following:
Marginal note:Consent agreement
74.12 (1) The Commissioner and a person in respect of whom the Commissioner has applied or may apply for an order under this Part may sign a consent agreement.
Marginal note:Terms of consent agreement
(2) The consent agreement shall be based on terms that could be the subject of an order of a court against that person, and may include other terms, whether or not they could be imposed by the court.
Marginal note:Registration
(3) The consent agreement may be filed with the court for immediate registration.
Marginal note:Effect of registration
(4) Upon registration of the consent agreement, the proceedings, if any, are terminated and the consent agreement has the same force and effect, and proceedings may be taken, as if it were an order of the court.
Marginal note:Rescission or variation of consent agreement or order
74.13 The court may rescind or vary a consent agreement that it has registered or an order that it has made under this Part, on application by the Commissioner or the person who consented to the agreement, or the person against whom the order was made, if the court finds that
(a) the circumstances that led to the making of the agreement or order have changed and, in the circumstances that exist at the time the application is made, the agreement or order would not have been made or would have been ineffective in achieving its intended purpose; or
(b) the Commissioner and the person who consented to the agreement have consented to an alternative agreement or the Commissioner and the person against whom the order was made have consented to an alternative order.
Marginal note:R.S., c. 19 (2nd Supp.), s. 45; 1999, c. 2, par. 37(w)
11.1 (1) The portion of subsection 75(1) of the Act before paragraph (a) is replaced by the following:
Marginal note:Jurisdiction of Tribunal where refusal to deal
75. (1) Where, on application by the Commissioner or a person granted leave under section 103.1, the Tribunal finds that
(2) Subsection 75(1) of the Act is amended by striking out the word “and” at the end of paragraph (c), by adding the word “and” at the end of paragraph (d) and by adding the following after paragraph (d):
(e) the refusal to deal is having or is likely to have an adverse effect on competition in a market,
(3) Section 75 of the Act is amended by adding the following after subsection (3):
Marginal note:Inferences
(4) In considering an application by a person granted leave under section 103.1, the Tribunal may not draw any inference from the fact that the Commissioner has or has not taken any action in respect of the matter raised by the application.
Marginal note:R.S., c. 19, (2nd Supp.), s. 45; 1999, c. 2, par. 37(y)
11.2 (1) The portion of subsection 77(2) of the Act before paragraph (a) is replaced by the following:
Marginal note:Exclusive dealing and tied selling
(2) Where, on application by the Commissioner or a person granted leave under section 103.1, the Tribunal finds that exclusive dealing or tied selling, because it is engaged in by a major supplier of a product in a market or because it is widespread in a market, is likely to
Marginal note:R.S., c. 19, (2nd Supp.), s. 45; 1999, c. 2, par. 37(y)
(2) Subsection 77(3) of the Act is replaced by the following:
Marginal note:Market restriction
(3) Where, on application by the Commissioner or a person granted leave under section 103.1, the Tribunal finds that market restriction, because it is engaged in by a major supplier of a product or because it is widespread in relation to a product, is likely to substantially lessen competition in relation to the product, the Tribunal may make an order directed to all or any of the suppliers against whom an order is sought prohibiting them from continuing to engage in market restriction and containing any other requirement that, in its opinion, is necessary to restore or stimulate competition in relation to the product.
(3) Section 77 of the Act is amended by adding the following after subsection (6):
Marginal note:Inferences
(7) In considering an application by a person granted leave under section 103.1, the Tribunal may not draw any inference from the fact that the Commissioner has or has not taken any action in respect of the matter raised by the application.
11.3 Section 77 of the Act is amended by adding the following after subsection (3):
Marginal note:Damage awards
(3.1) For greater certainty, the Tribunal may not make an award of damages under this section to a person granted leave under subsection 103.1(7).
11.4 Section 79 of the Act is amended by adding the following after subsection (3):
Marginal note:Administrative monetary penalty
(3.1) Where the Tribunal makes an order under subsection (1) or (2) against an entity who operates a domestic service, as defined in subsection 55(1) of the Canada Transportation Act, it may also order the entity to pay, in such manner as the Tribunal may specify, an administrative monetary penalty in an amount not greater than $15 million.
Marginal note:Aggravating or mitigating factors
(3.2) In determining the amount of an administrative monetary penalty, the Tribunal shall take into account the following:
(a) the frequency and duration of the practice;
(b) the vulnerability of the class of persons adversely affected by the practice;
(c) injury to competition in the relevant market;
(d) the history of compliance with this Act by the entity; and
(e) any other relevant factor.
Marginal note:Purpose of order
(3.3) The purpose of an order under subsection (3.1) is to promote practices that are in conformity with this section, not to punish.
11.5 The Act is amended by adding the following after section 79:
Marginal note:Unpaid monetary penalty
79.1 The amount of an administrative monetary penalty imposed on an entity under subsection 79(3.1) is a debt due to Her Majesty in right of Canada and may be recovered as such from that entity in a court of competent jurisdiction.
12. The Act is amended by adding the following before section 104:
Marginal note:Leave to make application under section 75 or 77
103.1 (1) Any person may apply to the Tribunal for leave to make an application under section 75 or 77. The application for leave must be accompanied by an affidavit setting out the facts in support of the person’s application under section 75 or 77.
Marginal note:Notice
(2) The applicant must serve a copy of the application for leave on the Commissioner and any person against whom the order under section 75 or 77 is sought.
Marginal note:Certification by Commissioner
(3) The Commissioner shall, within 48 hours after receiving a copy of an application for leave, certify to the Tribunal whether or not the matter in respect of which leave is sought
(a) is the subject of an inquiry by the Commissioner; or
(b) was the subject of an inquiry that has been discontinued because of a settlement between the Commissioner and the person against whom the order under section 75 or 77 is sought.
Marginal note:Application discontinued
(4) The Tribunal shall not consider an application for leave respecting a matter described in paragraph (3)(a) or (b) or a matter that is the subject of an application already submitted to the Tribunal by the Commissioner under section 75 or 77.
Marginal note:Notice by Tribunal
(5) The Tribunal shall as soon as practicable after receiving the Commissioner’s certification under subsection (3) notify the applicant and any person against whom the order is sought as to whether it can hear the application for leave.
Marginal note:Representations
(6) A person served with an application for leave may, within 15 days after receiving notice under subsection (5), make representations in writing to the Tribunal and shall serve a copy of the representations on any other person referred to in subsection (2).
Marginal note:Granting leave to make application under section 75 or 77
(7) The Tribunal may grant leave to make an application under section 75 or 77 if it has reason to believe that the applicant is directly and substantially affected in the applicants’ business by any practice referred to in one of those sections that could be subject to an order under that section.
Marginal note:Time and conditions for making application
(8) The Tribunal may set the time within which and the conditions subject to which an application under section 75 or 77 must be made. The application must be made no more than one year after the practice that is the subject of the application has ceased.
Marginal note:Decision
(9) The Tribunal must give written reasons for its decision to grant or refuse leave and send copies to the applicant, the Commissioner and any other person referred to in subsection (2).
Marginal note:Limitation
(10) The Commissioner may not make an application for an order under section 75, 77 or 79 on the basis of the same or substantially the same facts as are alleged in a matter for which the Tribunal has granted leave under subsection (7), if the person granted leave has already applied to the Tribunal under section 75 or 77.
Marginal note:Inferences
(11) In considering an application for leave, the Tribunal may not draw any inference from the fact that the Commissioner has or has not taken any action in respect of the matter raised by it.
Marginal note:Inquiry by Commissioner
(12) If the Commissioner has certified under subsection (3) that a matter in respect of which leave was sought by a person is under inquiry and the Commissioner subsequently discontinues the inquiry other than by way of settlement, the Commissioner shall, as soon as practicable, notify that person that the inquiry is discontinued.
Marginal note:Intervention by Commissioner
103.2 If a person granted leave under subsection 103.1(7) makes an application under section 75 or 77, the Commissioner may intervene in the proceedings.
Marginal note:Interim order
103.3 (1) Subject to subsection (2), the Tribunal may, on ex parte application by the Commissioner in which the Commissioner certifies that an inquiry is being made under paragraph 10(1)(b), issue an interim order
(a) to prevent the continuation of conduct that could be the subject of an order under any of sections 75 to 77, 79, 81 or 84; or
(b) to prevent the taking of measures under section 82 or 83.
Marginal note:Limitation
(2) The Tribunal may make the interim order if it finds that the conduct or measures could be of the type described in paragraph (1)(a) or (b) and that, in the absence of an interim order,
(a) injury to competition that cannot adequately be remedied by the Tribunal is likely to occur;
(b) a person is likely to be eliminated as a competitor; or
(c) a person is likely to suffer a significant loss of market share, a significant loss of revenue or other harm that cannot be adequately remedied by the Tribunal.
Marginal note:Consultation
(3) Before making an application for an order to prevent the continuation of conduct that could be the subject of an order under any of sections 75 to 77, 79, 81 or 84 by an entity incorporated under the Bank Act, the Insurance Companies Act, the Trust and Loan Companies Act or the Cooperative Credit Associations Act or a subsidiary of such an entity, the Commissioner must consult with the Minister of Finance respecting the safety and soundness of the entity.
Marginal note:Duration
(4) Subject to subsections (5) and (6), an interim order has effect for 10 days, beginning on the day on which it is made.
Marginal note:Extension or revocation of order
(5) The Tribunal may, on application by the Commissioner on 48 hours notice to each person against whom the interim order is directed,
(a) extend the interim order once or twice for additional periods of 35 days each; or
(b) rescind the order.
Marginal note:Application to Tribunal for extension
(5.1) The Commissioner may, before the expiry of the second 35-day period referred to in subsection (5) or of the period fixed by the Tribunal under subsection (7), as the case may be, apply to the Tribunal for a further extension of the interim order.
Marginal note:Notice of application by Commissioner
(5.2) The Commissioner shall give at least 48 hours notice of an application referred to in subsection (5.1) to the person against whom the interim order is made.
Marginal note:Extension of interim order
(5.3) The Tribunal may order that the effective period of the interim order be extended if
(a) the Commissioner establishes that information requested for the purpose of the inquiry has not yet been provided or that more time is needed in order to review the information;
(b) the information was requested during the initial period that the interim order had effect, within the first 35 days after an order extending the interim order under subsection (5) had effect, or within the first 35 days after an order extending the interim order made under subsection (7) had effect, as the case may be, and
(i) the provision of such information is the subject of a written undertaking, or
(ii) the information was ordered to be provided under section 11; and
(c) the information is reasonably required to determine whether grounds exist for the Commissioner to make an application under any section referred to in paragraph (1)(a) or (b).
Marginal note:Terms
(5.4) An order extending an interim order issued under subsection (5.3) shall have effect for such period as the Tribunal considers necessary to give the Commissioner a reasonable opportunity to receive and review the information referred to in that subsection.
Marginal note:Effect of application
(5.5) If an application is made under subsection (5.1), the interim order has effect until the Tribunal makes a decision whether to grant an extension under subsection (5.3).
Marginal note:When application made to Tribunal
(6) If an application is made under subsection (7), an interim order has effect until the Tribunal makes an order under that subsection.
Marginal note:Confirming or setting aside interim order
(7) A person against whom the Tribunal has made an interim order may apply to the Tribunal in the first 10 days during which the order has effect to have it varied or set aside and the Tribunal shall
(a) if it is satisfied that one or more of the situations set out in paragraphs (2)(a) to (c) existed or are likely to exist, make an order confirming the interim order, with or without variation as the Tribunal considers necessary and sufficient to meet the circumstances, and fix the effective period of that order for a maximum of 70 days, beginning on the day on which the order confirming the interim order is made; and
(b) if it is not satisfied that any of the situations set out in paragraphs (2)(a) to (c) existed or is likely to exist, make an order setting aside the interim order.
Marginal note:Notice
(8) A person who makes an application under subsection (7) shall give the Commissioner 48 hours written notice of the application.
Marginal note:Representations
(9) At the hearing of an application under subsection (7), the Tribunal shall provide the applicant, the Commissioner and any person directly affected by the interim order with a full opportunity to present evidence and make representations before the Tribunal makes an order under that subsection.
Marginal note:Prohibition of extraordinary relief
(10) Notwithstanding section 13 of the Competition Tribunal Act, an interim order shall not be appealed or reviewed in any court except as provided for by subsection (7).
Marginal note:Duty of Commissioner
(11) When an interim order is in effect, the Commissioner shall proceed as expeditiously as possible to complete the inquiry arising out of the conduct in respect of which the order was made.
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