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Category Archives: Competition Litigation

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What Constitutes a Separate Product?

Posted in Competition Litigation
Tying occurs when a consumer buys one product (the “tying product”) and is required to either purchase an additional product that exists in a separate market (the “tied product”), or agrees not to purchase the additional tied product from any other seller.  Tied selling is only problematic where the practice is likely to have an… Continue Reading

A significant increase in the prohibition of mergers in South Africa

Posted in Competition Litigation, Merger Notification & Review
The South African Competition Commission has since the beginning of 2017 prohibited eleven intermediate mergers and has recommended that four large mergers be prohibited.  This number is substantially higher than 2016, when the Commission prohibited three intermediate mergers and recommended that one large merger be prohibited.  For the period end of September to October 2017,… Continue Reading

Sixth Guilty Plea in Montreal Condo Development Bid Rigging Scheme

Posted in Cartels & Other Competition Criminal Matters, Competition Litigation
On October 27, 2017, Cardinal Ventilation Inc. was fined $375,000.00 after pleading guilty to one count of bid rigging related to three condominium development projects in Montreal. The contracts in question related to the supply and installation of ventilation and/or air conditioning systems in residential high-rise construction projects in the greater Montreal region. Cardinal Ventilation… Continue Reading

South Africa: When a competitive bid is not enough

Posted in Competition Compliance Programs, Competition Litigation
One might think that competition law would applaud a firm that submits an independent and competitive bid, in response to a tender aimed at lowering prices.  Recent experience in South Africa suggests that this is not always the case, and that such a firm may face investigation by the competition authorities precisely because it won… Continue Reading

South Africa: The Competition Commission’s Market Inquiry into Data Services

Posted in Competition Compliance Programs, Competition Litigation
(The full version of this bulletin was originally published on Fasken.com – “The Competition Commission’s Market Inquiry into Data Services” – September 12th, 2017.) On 18 September 2017, the Competition Commission is expected to commence a market inquiry into data services in South Africa. This is the sixth market inquiry to be initiated by the… Continue Reading

The Canadian Competition Tribunal’s Jurisdiction: Broader Than You May Think

Posted in Competition Compliance Programs, Competition Litigation
The Canadian Competition Tribunal recently dismissed a jurisdictional challenge by HarperCollins to the Commissioner of Competition’s application for an order prohibiting the implementation of an alleged agreement between HarperCollins and other e-book publishers.  The Commissioner’s application is under section 90.1 of the Competition Act (“non-criminal agreements between competitors”).  It alleges, broadly speaking, that in 2010, HarperCollins… Continue Reading

CASL Private Right of Action Delayed Indefinitely

Posted in Competition Litigation, Marketing & Advertising
Citing the desire for a balanced approach to the needs of individuals and organizations under Canada’s anti-spam law, the Minister of Innovation, Science and Economic Development announced today that he is delaying indefinitely the coming into force of the private right of action provisions (section 51) in Canada’s anti-spam law (CASL). This important decision is welcome news… Continue Reading

Understanding the Competition Commission South Africa’s Public Passenger Transport Market Inquiry

Posted in Competition Litigation
On 7 June 2017 the Competition Commission South Africa will commence a market inquiry into the public passenger transport sector. This is the fifth market inquiry to be initiated by the Commission, following inquiries into the LPG, healthcare, grocery retail and banking sectors. What does the Commission intend to investigate? In terms of the Terms… Continue Reading

More penalties for digital “drip pricing”

Posted in Competition Litigation, Marketing & Advertising
Hertz and Dollar Thrifty agree to pay $1.25 million The Competition Bureau announced this week that Hertz and Dollar Thrifty have agreed to pay an administrative monetary penalty of $1.25 million and to implement compliance procedures to resolve the Bureau’s investigation of “drip pricing” by the companies.  “Drip pricing” refers to advertised prices that are… Continue Reading

Kobo’s Quest for Status Quo in the E-books Market: A Never Ending Story

Posted in Competition Litigation, Pricing and Distribution
On February 17, 2017, Toronto-based e-books retailer Rakuten Kobo Inc. (“Kobo”) sought judicial review of the consent agreements reached between the Commissioner of Competition (“Commissioner”) and three e-books publishers earlier this year. The consent agreements reached between the Commissioner and each of Hachette, Macmillan, and Simon & Schuster are aimed at resolving the Commissioner’s concerns… Continue Reading

CASL, the Competition Act and Class Actions:  A Primer for Forthcoming Private Enforcement

Posted in Competition Litigation, Marketing & Advertising
Now that 2017 has arrived, we are less than seven months away from private enforcement (particularly through class actions) for false or misleading electronic messages. CASL’s  amendments to the Competition Act sought to address deceptive marketing practices in the electronic marketplace. Three reviewable practices were created – all within section 74.011 of the Competition Act –… Continue Reading

The Bicycles case: Silent tandem riders beware

Posted in Cartels & Other Competition Criminal Matters, Competition Litigation
  The passive attendee in meetings at which potentially collusive conduct takes place has recently been considered further and developed by the South African Competition Appeal Court in the ‘bicycles case’. Previously addressed by the South African Competition Tribunal in DPI Plastics Pipes (2012), the Tribunal concluded that an attendee simply cannot stay silent nor… Continue Reading

Competition Bureau Releases Updated Consent Agreement Template for Merger Remedy Negotiations

Posted in Competition Litigation, Merger Notification & Review
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,… Continue Reading

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

Posted in Cartels & Other Competition Criminal Matters, Competition Litigation
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… Continue Reading

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

Posted in Competition Litigation, Merger Notification & Review, Pricing and Distribution
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… Continue Reading

A Long Road to Victory: The Competition Bureau Wins TREB Case

Posted in Competition Litigation
On April 27, 2016, the Competition Tribunal (the “Tribunal”) ended the years-long dispute between the Competition Bureau (the “Bureau”) and the Toronto Real Estate Board (“TREB”) by ruling that certain of TREB’s practices are anticompetitive. TREB — an association of real estate brokers — had adopted rules that barred brokers from disseminating detailed listing information… Continue Reading

Mediation: A First in Resolving Merger Challenges under the Competition Act

Posted in Competition Litigation
In an unprecedented move in Canadian competition litigation, the Competition Bureau and Parkland Fuel Corporation (“Parkland”) reached a consent agreement through mediation on March 29, 2016. The dispute—which was founded on the Commissioner of Competition’s (“Commissioner”) concerns that competition would be significantly lessened in eight local retail gas markets as a result of Parkland’s acquisition… Continue Reading

BC Court denies disclosure based on public interest privilege in Pro-Sys v. Microsoft

Posted in Competition Litigation
On January 22, 2016, Justice Myers of the Supreme Court of BC issued a decision denying the plaintiffs’ request for disclosure of documents collected by the Competition Bureau in Pro-Sys Consultants Ltd. v Microsoft Corporation 2016 BC 97. Pro-Sys v. Microsoft is an indirect purchaser class action for damages based on allegations of anti-competitive conduct. … Continue Reading

Competition Tribunal Dismisses Refusal to Deal Application

Posted in Abuse of Dominance, Competition Litigation, Refusal to Deal
On January 4, 2016, the Competition Tribunal (the “Tribunal”) released its first decision in respect of a refusal to deal case in almost 5 years. Indeed, the Tribunal dismissed Audatex Canada’s (“Audatex”) application for leave to bring a refusal to deal application under section 75 of the Competition Act (the “Act”) against CarProof and Markplaats,… Continue Reading

The Effect of the Trans-Pacific Partnership on Competition and Foreign Investment

Posted in Competition Compliance Programs, Competition Litigation, Foreign Investment
On November 5, 2015, the parties to the Trans-Pacific Partnership (“TPP”) concluded their last round of a 5-year, 19-round negotiation. The TPP is, ostensibly, a free trade agreement between Canada and 11 other countries, including Australia, Japan, Mexico, New Zealand, and the United States. It aims to provide duty-free trade on most goods, and to… Continue Reading

Class Action Launched Against Banks for Alleged Price-Fixing Conspiracy in Foreign Exchange Market

Posted in Cartels & Other Competition Criminal Matters, Competition Litigation
On September 10, 2015, Christopher Staines filed a class action in the Ontario Superior Court of Justice against numerous banks for their role in an alleged conspiracy contrary to section 45 of the Competition Act (the “Act”). Staines claims, among other things, that the defendant banks had conspired, agreed and/or arranged with each other to… Continue Reading

Criminal Charges Suspended in One of Canada’s Longest Price-Fixing Investigations

Posted in Cartels & Other Competition Criminal Matters, Competition Litigation, Pricing and Distribution
The Competition Bureau (Bureau) announced yesterday that the Public Prosecution Service of Canada (PPSC) has entered a stay of proceedings against 4 key targets, in one of the Bureau’s most labour-intensive, criminal investigations to date. Indeed, following the Bureau’s 6-year investigation of alleged price-fixing in the chocolate confectionary industry, criminal proceedings against ITWAL Ltd., Mars… Continue Reading

Changes to the Government of Canada’s Procurement Policies

Posted in Cartels & Other Competition Criminal Matters, Competition Compliance Programs, Competition Litigation
On July 3, 2015, Public Works and Government Services Canada (PWGSC) announced a new government-wide integrity regime for procurement and real property transactions. While the spirit of PWGSC’s “Ineligibility and Suspension Policy” is consistent with previous iterations of the federal government’s procurement practices, the contents of this policy are notably different. Indeed, in an effort… Continue Reading