On June 26, 2014 and in furtherance of its objective of making its administrative practices more transparent, the Competition Bureau issued a new Bulletin, Communication during Inquiries.
Under section 10 of the Competition Act, the Bureau is empowered to initiate inquiries into, among others things, transactions and business conduct that may be subject to the merger or reviewable conduct provisions of the Act. Among other things, the new Bulletin summarizes, in general terms, when and how the Bureau will, within the constraints imposed by the confidentiality requirements of the Act, communicate with parties whose conduct or transaction is being investigated as well as with industry participants, complainants and the general public.
The Bureau states that, in general, it will, as early as is appropriate and where reasonably possible, contact the subject parties to notify them that an inquiry has been commenced. As part of this initial communication, the parties will be advised of the general nature of the conduct being investigated, of the relevant provisions of the Act under which the conduct is being examined and of the identity of the assigned Bureau case officer. In some cases, the existence of the inquiry may not be news to the parties as the parties may already be aware of the inquiry if, for example, a production order has been issued against them or a supplementary information request has been made in respect of a notifiable merger.
One of the benefits of Bureau notification is that it gives the parties the opportunity to be proactive with respect to the Bureau’s inquiry including allowing them to approach the Bureau to engage in discussions regarding possible methods of resolving the Bureau’s concerns. In such cases, the Bureau may, where it perceives that the parties are committed to resolving a matter, participate in “without prejudice” resolution discussions.
Should the Bureau decide to discontinue the inquiry, the parties will be notified although, again in some cases, the parties will, because they may have been involved in settlement discussions with the Bureau, already be aware of the Bureau’s intent to terminate the inquiry.
Bureau contacts regarding an inquiry may not be limited to just the parties directly involved in the matter. The Bureau may also decide to reach out to industry participants to gather relevant information. Information provided by such persons will be treated as confidential by the Bureau subject to the exceptions provided in the Act. While not legally entitled to information about the Bureau’s inquiry, the Bureau may disclose some information about the inquiry in order to obtain information relevant for the inquiry. For example, it may disclose, in general terms, why it needs certain information in order to facilitate obtaining a more informed response to its questions.
Additionally, if an inquiry has arisen because of a formal complaint under the Act, the complainant has a right, if it makes a written request, to be informed as to the progress of the inquiry and will also be informed of the inquiry’s discontinuance with the reasons for such action.
Further, where the Bureau determines that the results of an inquiry may provide guidance to facilitate compliance with the Act, it may also elect to issue a position statement to the public summarizing its main findings.
The ongoing issuance of publications such as the Communication during Inquiries bulletin is welcomed as they assist the public and those who may come in contact with the Bureau in better understanding the Bureau’s administrative practices thereby improving predictability and allowing better decision-making.