Competition Act

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: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.