Competition Chronicle

Competition Chronicle

Competition & Antitrust | Foreign Investment

Investment Canada Issues National Security Review Guidelines

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On December 19, 2016, the Minister of Innovation, Science and Economic Development (Minister) issued Guidelines on the National Security Review of Investments (Guidelines) in an effort to provide foreign investors and their advisers with a better understanding as to the circumstances in which a national security review might be initiated by the Government of Canada under the Investment Canada Act (Act).

Background

In February 2009, the Act was amended to provide the Government of Canada with the authority to review virtually any foreign investment that, in its opinion, could be injurious to Canada’s national security.  The national security review process is an additional clearance under the Act which is separate and distinct from the “net benefit to Canada” economic impact review process for which the Act was originally created.

In summary, if the Canadian Government, principally Canada’s security and intelligence agencies, identifies a potential national security threat associated with an investment in Canada by a non-Canadian, the Minister is advised of that concern and, after consultation with the Minister of Public Safety and Emergency Preparedness (Public Safety Minister), the Minister is responsible for referring the investment to the Governor in Council (GIC) if he agrees that the investment could be injurious to national security.  The GIC then determines whether a review should be ordered.  If the GIC orders a review, the Minister, after consultation with the Public Safety Minister, then conducts a formal review and, if necessary, submits a report to the GIC with his recommendations at which point the GIC has the authority to take any measures in respect of the investment that it considers advisable to protect national security.  These measures include permitting the investment to proceed with or without conditions or prohibiting the investment or, if already made, requiring the divestiture of the investment.

Unfortunately, little practical guidance was until now provided to foreign investors and their advisers as to the circumstances in which a national security review might be initiated.  This situation contrasted with national security reviews conducted by the Committee on Foreign Investment in the United States which had issued guidance on the types of investments that might be of concern to it.  The Guidelines which inform investors of the procedures that will be followed in the administration of the national security review process set out in Part IV.1 of the Act and in the National Security Review of Investments Regulations are intended to help remedy this lack of guidance.

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Competition Bureau Settles “Made in Canada” Advertising Dispute with Moose Knuckles

calgary-1751847_1920The Competition Bureau (Bureau) announced on December 7, 2016 that the Commissioner of Competition (Commissioner) had reached a settlement with Moose International Inc. (Moose) regarding his concerns over Moose’s “Made in Canada” advertising and labelling with respect to certain of its premium brand parkas.  The settlement brings to an end legal proceedings between the parties that had started earlier this year.

As part of the settlement and while not admitting to the Commissioner’s allegations, Moose has agreed to donate $750,000 over five years to Canadian charities providing winter jackets to children in need.  Additionally, Moose also agreed to make it clearer in its advertising and labelling that certain parkas are in fact made with Canadian and imported components and to implement an internal compliance program to help ensure that these types of advertising and labelling issues not arise in the future.  Moose has also advised the Commissioner that it will be adding certain additional operations to its Canadian factories that manufacture its parkas.

In June, we reported that, following the completion of an inquiry into Moose’s marketing practices, the Commissioner had filed an application (Application) before the Competition Tribunal alleging that certain of Moose’s “Made in Canada” representations had created a materially false or misleading general impression with consumers and, as such, were contrary to paragraph 74.01(1)(a) of the Competition Act (Act).  Moose’s response to the Application denied the Commissioner’s allegations and any breach of the Act.

In support of his Application, the Commissioner made extensive reference to his “Product of Canada” and “Made in Canada” Claims Enforcement Guidelines (Guidelines) which he had issued in 2009 to provide predictability for businesses regarding the assessment by the Commissioner of “Product of Canada” and “Made in Canada” claims.  Moose responded by denying that its marketing activities fell below the standard set out in the Guidelines and, regardless, argued that the Guidelines were not, in fact, the law.

What is perhaps most notable about the settlement is that it was arrived at using a relatively new mediation process.  This settlement represents the second such settlement using mediation as a tool to achieve a timely and efficient resolution in a dispute with the Commissioner.

Investment Canada: National Security Guidelines To Be Published

vancouver-754242On November 1, 2016, the Honourable William Morneau, Canada’s Minister of Finance, tabled his government’s Fall Economic StatementIncluded in the Statement was a commitment by the Liberal Government to ensure that Canada makes the most of every opportunity to attract global investment.

Since his election in 2015, Prime Minister Justin Trudeau has indicated both in his public statements and in his actions that his government is more open to foreign investment than the government of former Prime Minister Stephen Harper.  In furtherance of that openness, a new federal body, the Invest in Canada Hub, is to be created to coordinate Canada’s investment promotion activities and the number of trade commissioners will be increased in markets that are considered strategic to Canada.

The Investment Canada Act is federal legislation that requires any non-Canadian proposing to directly acquire control of a Canadian business that exceeds a prescribed monetary threshold to obtain government approval before proceeding with its investment.  In 2009, the Harper Government amended that legislation to create an additional review power in respect of foreign investments that appear to raise national security concerns.  Unfortunately, the government provided no insight or explanation as to how the new national security review power would be used in practice.  Subsequent exercises of that power to block a number of transactions have not resulted in a much better understanding as to the circumstances in which this power will be invoked.  This situation has resulted in considerable uncertainty in the minds of foreign investors contemplating potential investments in Canada.

As part of the Statement, the Minister of Finance announced that, before the end of the current calendar year, his government will publish informational guidelines explaining the circumstances under which foreign investments will be examined under the national security review provisions.  It is hoped that this increase in transparency as to how the review process works in the context of national security reviews will attract desirable foreign investments in Canada by providing foreign investors with a better understanding as to exactly what types of investments will be subjected to nation security review attention.   The new guidelines hopefully will also assist foreigners to better navigate the Investment Canada Act review process thereby encouraging foreign investment in Canada while at the same time ensuring the ongoing integrity of Canada’s national security processes

Competition Bureau Conducts Internet Sweep Focusing on Online Reviews and Endorsements

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Online reviews and endorsements are a growing tool used by businesses to sell their products and services.  Last month, the Canadian Competition Bureau (with international partners) conducted a “sweep” of the internet targeting online reviews and endorsements. The sweep is identifying websites that use online reviews or endorsements as part of their business model.  The Bureau has noted that it will follow-up with websites of concern, ranging from a warning or information letter to opening an investigation.

The Bureau’s sweep follows the June 2016 publication of the International Consumer Protection and Enforcement Network’s (ICPEN) Online Reviews and Endorsement Guidelines for digital influencers (e.g., bloggers, tweeters), review administrators (i.e., processors of consumer reviews online) and marketing professionals (i.e., promoters of goods and services on review platforms, social media).

The Bureau’s sweep in an important reminder for companies and individuals to be informed and vigilant when using online reviews and endorsements to sells goods and services.  In this regard, salient portions of ICPEN’s guidelines for digital influencers, review administrators and marketing professionals are summarized below.  The application of the guidelines will vary depending on the circumstances the business and products and services at issue.

Digital influencers

A “digital influencer” is broadly understood as anyone who posts online content on their own website, online platform or social media account that includes an opinion, experience or other information about a market, business, good or service.  Key principles for digital influencers include the following:

  • Disclose all paid-for content clearly and prominently:   digital influencers are expected to ensure that any content they post (or which payment has been received) is clearly identifiable to viewers as paid-for content.  “Paid-for” includes monetary and non-monetary payments. Paid-for content may include advertisements, advertorials, product placements, sponsored posts, sponsored links, articles written in collaboration, promotional features and consumer interest stories.
  • Disclose other commercial relationships:  digital influencers are expected to ensure that viewers are advised of any relevant commercial relationships that may be featured in their online content.
  • Views are expected to be genuine:   digital influencers are expected to make clear whose opinion or experience is being conveyed regarding markets, businesses, goods or services, such as whether the opinion is the person’s own opinion or that of an employee’s, a guest contributor’s or an advertiser’s.
  • Decline non-complaint businesses:  Digital influencers are expected to decline requests from businesses to post paid-for content without proper disclosure.

Review Administrators

A “review administrator” is generally regarded as an organization or individual that processes consumer reviews.  Review administrators come in many forms and include: (a) entities that manufacture, distribute or supply products and services, and also obtain reviews about them, (b) third parties that obtain reviews on behalf of an entity that manufactures, distributes or supplies products and services; and (c) third parties that are involved in the collection, moderation and display of reviews.  Key principles for review administrators include the following:

  • Publish terms and conditions prior to collection: review administrators should have terms and conditions under which it will collect, moderate and publish consumer reviews, and publish those terms and conditions.
  • Verifying consumer reviews as authentic:  review administrators should exercise adequate due diligence, such as only accepting reviews from consumers who have purchased the product or service at issue or allowing site users to assess the reliability of reviewers.
  • Publishing reviews in a neutral manner:  review administrators should publish reviews in an objective and neutral manner (i.e., without delay, select editing)

Marketing Professionals

Marketing professionals include those who promote their goods or services on review platforms, blog posts, video blogs, tweets or online publications (sometime known as traders) as well as search engine optimisers.  Key principles for marketing professionals include:

  • Disclose clearly and prominently where content is paid-for or where other commercial relationships may be relevant to the content.
  • Never write fake reviews.

 

Competition Bureau Releases Updated Consent Agreement Template for Merger Remedy Negotiations

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On September 29, 2016, the Competition Bureau (the “Bureau”) released a revised consent agreement template for merger remedy negotiations. The release of the Bureau’s updated template is timely, as the number of consent agreements registered with the Competition Tribunal (the “Tribunal”) have risen significantly since the last template was published in 2007.

This year alone, 6 consent agreements have been registered with the Tribunal, compared to the 2 agreements that were registered in 2007. Since 2007, more than 30 consent agreements have been registered with Tribunal, following remedy negotiations between the Bureau and the merging parties.

The intent of the consent agreement template is to provide formal guidance to the legal and business communities in respect of the Bureau’s expectations when negotiating measures to address competitive issues likely to arise from a proposed merger.

Despite the publication of this guidance document designed to facilitate a conciliatory resolution, the Bureau noted in its accompanying press release that it “will not compromise its responsibility to preserve competition in the marketplace by contested proceedings.” In that regard, the Bureau is keeping true to the commitments it outlined in its 2016-2017 annual plan, namely its focus on “high-impact enforcement cases, merger reviews and outreach, including the advancement of a number of ongoing cases and projects.”

New Trial Ordered: Application of Co-Conspirators’ Exception to the Hearsay Rule at Issue in Price-Fixing Conspiracy Case

On September 9, 2016, the Quebec Court of Appeal (“QCCA”) issued its judgment in two gasoline price-fixing conspiracy cases. The cases were the product of the Competition Bureau’s (the “Bureau”) year-long investigation into the fixing of retail gasoline prices in the province of Quebec from April 2005 to May 2006.

The three accused individuals in the cases (Yves Gosselin, Linda Proulx, and Michel Lagrandeur) were charged under the Competition Act’s (the “Act”) former price-fixing provisions for conspiring to fix retail gasoline prices in the cities of Magog and Sherbrooke. All three accused were subsequently convicted at trial. The trial judge arrived at his decision based on the preponderance of evidence adduced during the trial, which included, among other things, hundreds of intercepted telephone conversations, which included statements by co-conspirators.

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The Competition Bureau, Criminal Conspiracies and Making History

The Competition Bureau Continues to Make History in its Enforcement of the Criminal Conspiracy Provisions of the Competition Act

For the second time in as many months, the Competition Bureau (the “Bureau”) has made an historic announcement about its efforts to enforce the criminal conspiracy provisions of the Competition Act (the “Act”).

On July 20, 2016, the Bureau announced that it would avail itself of the bilateral Memorandum of Understanding between Canada and the United States to defer criminal charges under the Act. In this piece of the Bureau’s larger automotive parts investigation, the Bureau ultimately refrained from charging or prosecuting Nishikawa Rubber Co., Inc. (a co-conspirator in a bid-rigging scheme), instead deferring to the US Department of Justice, which had obtained an agreement from Nishikawa to plead guilty and pay a fine of US$130 million in the US. This appears to be the first time the Bureau has publicly deferred prosecution in an international cartel investigation to a foreign antitrust agency in circumstances where there were direct effects in Canada.

More recently, the Bureau announced that, as part of plea agreement for rigging bids, the accused would assist the Bureau in its corporate compliance efforts by participating in two public presentations made by Bureau staff—another first in the history of enforcing the criminal conspiracy provisions of the Act.

In addition to Linda Graham’s 18-month conditional sentence for rigging bids relating to government IT contracts, she will speak out about bid rigging and about her personal experience defrauding the government. While novel, this part of Ms. Graham’s sentence fits comfortably with the Bureau’s 2016-17 Annual Plan and the Commissioner’s commitment to competition compliance.

Investment Canada Act – National Security Review Update

In our June 1, 2016 post, I reported that I had recently obtained, as a result of an access to information request made in 2013, information from the Canadian government regarding the number of notices and orders issued under national security provisions of the Investment Canada Act (ICA) for the period April 1, 2009 to March 31, 2013.

Late last week, Canada released its Investment Canada Act Annual Report for fiscal year 2015–16 (Annual Report) which for the first time includes information on the administration of the national security provisions of the ICA.  This information while limited in scope provides a more complete picture of Canada’s use of its discretionary national security review powers under the ICA.

Under the ICA, investments in Canada by non-Canadians are screened for national security issues. This process is undertaken in cooperation with Canada’s national security agencies.  If the initial screening indicates that a more detailed review is required, the ICA provides for a national security review to be ordered by the Governor-in-Council (GIC) on the recommendation of the Minister of Innovation, Science and Economic Development, after consultation with the Minister of Public Safety and Emergency Preparedness.

Since the national security provisions in the ICA came into force in 2009, the Annual Report states that the GIC has ordered a total of 8 national security reviews, broken down by year as follows:

April 2012 – March 2013 April 2013 – March 2014 April 2014 – March 2015 April 2015 – March 2016
2 1 4 1

As a result of those 8 GIC mandated reviews, the non-Canadians in three of the transactions were ordered not to implement their transactions.  In two other transactions, the non-Canadians were ordered to divest of the Canadian businesses that they had acquired.  However, two of the reviewed transactions were permitted to proceed subject to conditions which “mitigated the identified national security risks”.  The one other transaction was abandoned prior to a GIC order being made.

Given that, during the same time period, 4,359 notifications and 112 applications were filed by non-Canadians under the ICA (as well as there being numerous additional transactions by non-Canadians which did not require either notifications or applications but would have been subject to potential national security reviews under the ICA), 8 transactions represents a very small percentage of foreign investments with a Canadian connection that have attracted formal action by the Canadian government under the national security provisions of the ICA.  This latest information confirms our earlier conclusion, based on the limited disclosure resulting from the access to information request, that since the coming into force of its national security review powers in 2009 the Canadian government has only made limited use of these powers to challenge proposed and completed transactions.

Competition Bureau Releases its 2016-2017 Annual Plan

On July 28, 2016, the Competition Bureau (the “Bureau”) released its 2016-2017 Annual Plan, entitled “Strengthening Competition To Drive Innovation”. While this year’s Annual Plan ostensibly repackages both the Bureau’s 3-year Strategic Vision and its 2015-16 Annual Plan, it does contain a few notable developments.

Indeed, the Bureau has introduced 10 new “areas of focus” to help it achieve the 5 key objectives it had previously outlined in its 3-year Strategic Vision. Perhaps somewhat expectedly, 4 of the Bureau’s 10 focus areas address enforcing anticompetitive conduct and specifically contemplate deceptive marketing (civil and criminal), as well as bid-rigging.

The Bureau’s objectives and areas of focus are outlined below.

OBJECTIVE AREA OF FOCUS
Increase Compliance 1. Support innovation in the digital economy by deterring anti‑competitive conduct that impedes new entrants, products and services and by stopping deceptive marketing practices in e‑commerce.

2. Raise awareness throughout the procurement community and among potential bidders about bid‑rigging related to infrastructure spending, given increasing public‑sector investment.

3. Increase small and medium‑sized businesses’ awareness of the importance of complying with the statutes administered by the Bureau.

Empower Canadians 4. Provide timely and accurate warnings to reduce the risk of Canadian consumers being victims of civil and criminal deceptive marketing.
Promote Competition 5. Foster innovation through a pro‑competitive approach to regulation.

6. Strengthen our analytical frameworks and address competitive implications through workshops with stakeholders.

Collaborate with Partners 7. Facilitate more transparent interaction with other domestic regulators and enhance our ability to effectively administer labelling statutes by concluding additional memoranda of understanding.

8. Enhance and strengthen our network of international partners to address anticompetitive activity and deceptive marketing practices that cross borders and promote convergence in competition law policy.

Champion Excellence 9. Deliver a talent management strategy focused on planning, attracting, growing, engaging and retaining talents at all levels.

10. Undertake concrete actions to build and sustain a healthy, respectful and supportive work environment and improve internal communications focused on continuous engagement.

Given the title of this year’s Annual Plan, it is also no surprise that the Bureau has referenced several innovation-centric initiatives, including a market study of technology-led innovation and emerging services in the Canadian financial services sector.

Moreover, this year’s Annual Plan provides some concrete, forward-looking undertakings in which the Bureau plans to engage. One such undertaking is the creation of a Consumer Deceptive Marketing Advisory System (“CDMAS”). It is expected that the CDMAS will alert consumers to common deceptive marketing conduct via “new platforms,” likely for smartphones and other handheld devices.

The Annual Plan is a welcomed communication tool, which aligns with the Bureau’s commitment to openness and transparency.

Competition Bureau Issues “No Action” Letter Despite Likely Anti-Competitive Effects of Proposed Merger

Despite the fact that Canada’s Competition Bureau had concluded that the proposed acquisition of Canexus Corporation by Superior Plus Corp. would likely result in a substantial lessening of competition for the supply of various industrial chemical products in Canada, the Bureau issued a “no action” letter clearing the transaction under the Competition Act because of the efficiency exception contained in that Act.  This action is especially significant since it marks the first instance where the Competition Bureau has publicly cleared an otherwise anti-competitive merger on the basis of the efficiency defence, without resorting to litigation before the Competition Tribunal.

The Competition Act sets out a statutory “efficiency defence” for potentially anti-competitive mergers, a defence which, according to the Bureau, may be unique to Canada.  Section 96 of the Act mandates that the Competition Tribunal, the federal adjudicative body that deals with mergers under the Act, cannot make an order prohibiting a merger where the merger is likely to bring about gains in efficiency that will be greater than, and will offset, the effects of any prevention or lessening of competition that are likely to result from the merger where those gains in efficiency would not likely be attained if such order were made.  The Bureau, following its review and analysis of the proposed merger, acknowledged that it was satisfied that the efficiency gains resulting from the proposed merger were “clearly greater than the likely significant anti-competitive effects” of the merger and, as such, the Bureau likely concluded that it would not be able to successfully challenge the merger before the Competition Tribunal.

In support of its efficiency defence, Superior had provided the Bureau with detailed analyses prepared by its expert to support Superior’s claims of efficiency gains resulting from the proposed transaction.  The Bureau had also retained its own external economic expert to model the likely effects of the proposed merger as well as an external efficiencies expert to evaluate Superior’s claimed efficiency gains.  In coming to its conclusion that the efficiency gains clearly outweighed the anti-competitive effect (e.g. likely higher prices for some products in some Canadian markets), the Bureau considered efficiency factors such as the elimination of overhead costs, freight optimization, and the elimination of duplicate corporate services.

Closing of the proposed merger is not however a certainty as the Federal Trade Commission (FTC) in the United States has filed an administrative complaint challenging the transaction under its U.S. anti-trust laws.  In announcing its decision, the Bureau noted that, during its own review, it had cooperated closely with the FTC.