Competition Act (R.S.C., 1985, c. C-34)

Marginal note:Service of agreement on Commissioner

• 74.133 (1) If a person granted leave under section 103.1 makes an application to the Tribunal for an order under section 74.1 and the person discontinues the application by reason of having entered into an agreement with any other person, the parties to the agreement must serve a copy of it on the Commissioner within 10 days after the day on which it is entered into.

• Marginal note:Commissioner may intervene

  (2) On application by the Commissioner, the Tribunal may vary or rescind the agreement if it finds that the agreement is not in conformity with the purposes of this Part.

• Marginal note:Notice

  (3) The Commissioner must give notice of an application under subsection (2) to the parties to the agreement.

Marginal note:Failure to serve

• 74.134 (1) If, on application by the Commissioner, the Tribunal determines that a person, without good and sufficient cause, the proof of which lies on the person, has failed to serve a copy of an agreement on the Commissioner in accordance with subsection 74.133(1), the Tribunal may

  • (a) order the person to serve the Commissioner with a copy of the agreement;

  • (b) issue an interim order prohibiting any person from doing anything that, in the Tribunal’s opinion, may constitute or be directed toward the implementation of the agreement;

  • (c) order the person to pay, in any manner that the Tribunal specifies, an administrative monetary penalty in an amount not exceeding $10,000 for each day on which they fail to serve a copy of the agreement on the Commissioner, determined by the Tribunal after taking into account any evidence of the following:

    • (i) the person’s financial position,

    • (ii) the person’s history of compliance with this Act,

    • (iii) the duration of the period of non-compliance, and

    • (iv) any other relevant factor; or

  • (d) grant any other relief that the Tribunal considers appropriate.

• Marginal note:Purpose of order

  (2) The terms of an order under paragraph (1)(c) are to be determined with a view to promoting conduct by the person that is in conformity with the purposes of this Act and not with a view to punishment.

• Marginal note:Unpaid monetary penalty

  (3) The administrative monetary penalty imposed under paragraph (1)(c) is a debt due to His Majesty in right of Canada and may be recovered as such from the person in a court of competent jurisdiction.

Marginal note:Evidence

74.14 In determining whether or not to make an order under this Part, the court shall not exclude from consideration any evidence by reason only that it might be evidence in respect of an offence under this Act or in respect of which another order could be made by the court under this Act.

Marginal note:Unpaid monetary penalty

74.15 The amount of an administrative monetary penalty imposed on a person under paragraph 74.1(1)(c) is a debt due to Her Majesty in right of Canada and may be recovered as such from that person in a court of competent jurisdiction.

Marginal note:Where proceedings commenced under section 52 or 52.01

74.16 No application may be made under this Part against a person on the basis of facts that are the same or substantially the same as the facts on the basis of which proceedings have been commenced against that person under section 52 or 52.01.

Rules of Procedure

Marginal note:Power of courts

74.17 The rules committee of the Federal Court, or a superior court of a province, may make rules respecting the procedure for the disposition of applications by that court under this Part.

Appeals

Marginal note:Appeal to Federal Court of Appeal

• 74.18 (1) An appeal may be brought in the Federal Court of Appeal from any decision or order made under this Part, or from a refusal to make an order, by the Tribunal or the Federal Court.

• Marginal note:Appeal to provincial court of appeal

  (2) An appeal may be brought in the court of appeal of a province from any decision or order made under this Part, or from a refusal to make an order, by a superior court of the province.

• Marginal note:Disposition of appeal

  (3) Where the Federal Court of Appeal or the court of appeal of the province allows an appeal under this section, it may quash the decision or order appealed from, refer the matter back to the court appealed from or make any decision or order that, in its opinion, that court should have made.

Marginal note:Appeal on question of fact

74.19 An appeal on a question of fact from a decision or order made under this Part may be brought only with the leave of the Federal Court of Appeal or the court of appeal of the province, as the case may be.

PART VIIIMatters Reviewable by Tribunal

Restrictive Trade Practices

Refusal to Deal

Marginal note:Jurisdiction of Tribunal — cases of refusal to deal

• 75 (1) The Tribunal may, on application by the Commissioner or a person granted leave under section 103.1, order one or more suppliers of a product, including a means of diagnosis or repair, in a market to accept a person as a customer, or to make the means of diagnosis or repair available to a person, within a specified period and on the terms that the Tribunal considers appropriate if the Tribunal finds that

  • (a) the person is substantially affected in the whole or part of their business or is precluded from carrying on business due to their inability to obtain adequate supplies of the product anywhere in the market on usual trade terms;

  • (b) the person is unable to obtain adequate supplies of the product because of insufficient competition among suppliers of the product in the market;

  • (c) the person is willing and able to meet the usual trade terms of the supplier or suppliers of the product;

  • (d) the product is in ample supply or, in the case of a means of diagnosis or repair, can be readily supplied; and

  • (e) the refusal to deal is having or is likely to have an adverse effect on competition in a market.

• Marginal note:Non-application

  (1.1) An order made under subsection (1) does not apply in the case of an article if, within the specified time, any customs duties on the article are removed, reduced or remitted and the effect of the removal, reduction or remission is to place the person on an equal footing with other persons who are able to obtain adequate supplies of the article in Canada.

• Marginal note:Additional order — person granted leave

  (1.2) If the Tribunal makes an order under subsection (1) as the result of an application by a person granted leave under section 103.1, it may also order any supplier in respect of whom the order applies to pay an amount, not exceeding the value of the benefit derived from the conduct that is the subject of the order, to be distributed among the applicant and any other person affected by the conduct, in any manner that the Tribunal considers appropriate.

• Marginal note:Implementation of the order

  (1.3) The Tribunal may specify in an order made under subsection (1.2) any term that it considers necessary for the order’s implementation, including a term

  • (a) specifying how the payment is to be administered;

  • (b) respecting the appointment of an administrator to administer the payment and specifying the terms of administration;

  • (c) requiring the person against whom the order is made to pay the administrative costs related to the payment as well as the fees to be paid to an administrator;

  • (d) requiring that potential claimants be notified in the time and manner specified by the Tribunal;

  • (e) specifying the time and manner for making claims;

  • (f) specifying the conditions for the eligibility of claimants, including conditions relating to the return of the products to the person against whom the order is made; and

  • (g) providing for the manner in which, and the terms on which, any amount of the payment that remains unclaimed or undistributed is to be dealt with.

• Marginal note:When article is a separate product

  (2) For the purposes of this section, an article is not a separate product in a market only because it is differentiated from other articles in its class by a trademark, proprietary name or the like, unless the article so differentiated occupies such a dominant position in that market as to substantially affect the ability of a person to carry on business in that class of articles unless that person has access to the article so differentiated.

• Marginal note:Trade secrets

  (2.1) Nothing in this section is to be interpreted as requiring the disclosure of any information that is a trade secret.

• Marginal note:Definitions

  (3) The following definitions apply in this section.

  means of diagnosis or repair

  means of diagnosis or repair includes diagnostic, maintenance, repair and calibration information, technical updates, diagnostic software or tools and any related documentation and service parts. (moyen de diagnostic ou de réparation)

  trade terms

  trade terms means terms in respect of payment, units of purchase and reasonable technical and servicing requirements. (conditions de commerce)

• 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.

Price Maintenance

Marginal note:Price maintenance

• 76 (1) On application by the Commissioner or a person granted leave under section 103.1, the Tribunal may make an order under subsection (2) if the Tribunal finds that

  • (a) a person referred to in subsection (3) directly or indirectly

    • (i) by agreement, threat, promise or any like means, has influenced upward, or has discouraged the reduction of, the price at which the person’s customer or any other person to whom the product comes for resale supplies or offers to supply or advertises a product within Canada, or

    • (ii) has refused to supply a product to or has otherwise discriminated against any person or class of persons engaged in business in Canada because of the low pricing policy of that other person or class of persons; and

  • (b) the conduct has had, is having or is likely to have an adverse effect on competition in a market.

• Marginal note:Order

  (2) The Tribunal may make an order prohibiting the person referred to in subsection (3) from continuing to engage in the conduct referred to in paragraph (1)(a) or requiring them to accept another person as a customer within a specified time on usual trade terms.

• Marginal note:Persons subject to order

  (3) An order may be made under subsection (2) against a person who

  • (a) is engaged in the business of producing or supplying a product;

  • (b) extends credit by way of credit cards or is otherwise engaged in a business that relates to credit cards; or

  • (c) has the exclusive rights and privileges conferred by a patent, certificate of supplementary protection issued under the Patent Act, trademark, copyright, registered industrial design or registered integrated circuit topography.

• Marginal note:When no order may be made

  (4) No order may be made under subsection (2) if the person referred to in subsection (3) and the customer or other person referred to in subparagraph (1)(a)(i) or (ii) are

  • (a) principal and agent or mandator and mandatary;

  • (b) an entity and an individual who controls it or affiliated entities; or

  • (c) directors, agents, mandataries, officers or employees of the same entity or of entities that are affiliated.

• Marginal note:Suggested retail price

  (5) For the purposes of this section, a suggestion by a producer or supplier of a product of a resale price or minimum resale price for the product, however arrived at, is proof that the person to whom the suggestion is made is influenced in accordance with the suggestion, in the absence of proof that the producer or supplier, in so doing, also made it clear to the person that they were under no obligation to accept the suggestion and would in no way suffer in their business relations with the producer or supplier or with any other person if they failed to accept the suggestion.

• Marginal note:Advertised price

  (6) For the purposes of this section, the publication by a producer or supplier of a product, other than a retailer, of an advertisement that mentions a resale price for the product is proof that the producer or supplier is influencing upward the selling price of any person to whom the product comes for resale, unless the price is expressed in a way that makes it clear to any person whose attention the advertisement comes to that the product may be sold at a lower price.

• Marginal note:Exception

  (7) Subsections (5) and (6) do not apply to a price that is affixed or applied to a product or its package or container.

• Marginal note:Refusal to supply

  (8) If, on application by the Commissioner or a person granted leave under section 103.1, the Tribunal finds that any person, by agreement, threat, promise or any like means, has induced a supplier, whether within or outside Canada, as a condition of doing business with the supplier, to refuse to supply a product to a particular person or class of persons because of the low pricing policy of that person or class of persons, and that the conduct of inducement has had, is having or is likely to have an adverse effect on competition in a market, the Tribunal may make an order prohibiting the person from continuing to engage in the conduct or requiring the person to do business with the supplier on usual trade terms.

• Marginal note:Where no order may be made

  (9) No order may be made under subsection (2) in respect of conduct referred to in subparagraph (1)(a)(ii) if the Tribunal is satisfied that the person or class of persons referred to in that subparagraph, in respect of products supplied by the person referred to in subsection (3),

  • (a) was making a practice of using the products as loss leaders, that is to say, not for the purpose of making a profit on those products but for purposes of advertising;

  • (b) was making a practice of using the products not for the purpose of selling them at a profit but for the purpose of attracting customers in the hope of selling them other products;

  • (c) was making a practice of engaging in misleading advertising; or

  • (d) made a practice of not providing the level of servicing that purchasers of the products might reasonably expect.

• Marginal note:Inferences

  (10) 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:Where proceedings commenced under section 45, 49, 79 or 90.1

  (11) No application may be made under this section against a person on the basis of facts that are the same or substantially the same as the facts on the basis of which

  • (a) proceedings have been commenced against that person under section 45 or 49; or

  • (b) an order against that person has been made under section 79 or 90.1.

• Marginal note:Additional order — person granted leave

  (11.1) If the Tribunal makes an order under subsection (2) as the result of an application by a person granted leave under section 103.1, it may also order the person against whom the order is made to pay an amount, not exceeding the value of the benefit derived from the conduct that is the subject of the order, to be distributed among the applicant and any other person affected by the conduct, in any manner that the Tribunal considers appropriate.

• Marginal note:Implementation of the order

  (11.2) The Tribunal may specify in an order made under subsection (11.1) any term that it considers necessary for the order’s implementation, including any term referred to in any of paragraphs 75(1.3)(a) to (g).

• Marginal note:Definition of trade terms

  (12) For the purposes of this section, trade terms means terms in respect of payment, units of purchase and reasonable technical and servicing requirements.