Competition Chronicle

Competition Chronicle

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Category Archives: Competition Litigation

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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

Charge to the Jury in R. v. Durward: Trial Judge Provides Guidance in Canadian Bid-Rigging and Federal Procurement Law

Posted in Cartels & Other Competition Criminal Matters, Competition Litigation
On April 26, 2015 the jury issued 60 “not guilty” verdicts for the six individuals and three corporations who stood accused in the 8 month long R v Durward trial. This case marks a milestone in Canadian bid-rigging trials; it is one of the largest proceedings of this nature to have ever occurred. It also… Continue Reading

Draft Update to Intellectual Property Enforcement Guidelines

Posted in Cartels & Other Competition Criminal Matters, Competition Compliance Programs, Competition Litigation, IP/Competition Interface
On June 9, 2015, the Competition Bureau (“the Bureau”) released, for public comment, an updated draft of its Intellectual Property Enforcement Guidelines (“the Guidelines”) proposing a number of substantive revisions. This update follows two earlier versions published in April 2014 and September 2014. The first two updates sought to address the 2009 amendments to the… Continue Reading

New Canadian Competition Prosecution Service?

Posted in Cartels & Other Competition Criminal Matters, Competition Compliance Programs, Competition Litigation
On May 26, 2015 NDP MP Annick Papillon introduced Bill C-681: An Act to Amend the Competition Act (Competition Prosecution Service). The timing of the Bill is interesting.  It follows on the heels of a major 8 month criminal bid-rigging trial (R. v. Durward, TPG, et al.). In that case, the jury rejected the Crown’s… Continue Reading

Important Lessons for Business from Fasken Martineau’s Recent Victory in a Major Criminal Bid-Rigging Trial

Posted in Cartels & Other Competition Criminal Matters, Competition Compliance Programs, Competition Litigation
On April 27, 2015, Peter Mantas and Pat McCann secured a victory in a major criminal bid-rigging trial. This communique will provide you with some further information about the trial including why it is important for companies that engage in any procurements and why it is precedent setting. In a dramatic conclusion to an eight month… Continue Reading

2014 South African Antitrust/Competition & Marketing Law Year in Review

Posted in Abuse of Dominance, Cartels & Other Competition Criminal Matters, Competition Compliance Programs, Competition Litigation, Merger Notification & Review
The year of 2014 marked the 15 year anniversary of the South African Competition Authorities. The year’s highlights included some important merger decisions, implementation of the Competition Commission’s powers in relation to market inquiries, development of the law prohibiting excessive pricing, the appointment of a new Commissioner and important clarification of regional merger control laws… Continue Reading

Memorandum of Understanding Between the Competition Bureau and the Ontario Securities Commission

Posted in Abuse of Dominance, Cartels & Other Competition Criminal Matters, Competition Compliance Programs, Competition Litigation, Foreign Investment, Merger Notification & Review, Monopolization, Trade Associations
On November 25, 2014, the Ontario Securities Commission (“OSC”) and the Competition Bureau (the “Bureau”, together with the OSC, the “Participants”) announced that they have signed a Memorandum of Understanding (the “MOU”), aimed at developing cooperation and effective delivery of each agency’s respective mandates. The MOU signifies the acknowledgment of the important relationship between the… Continue Reading

Tribunal Clarifies Approach to Joint Control in Mergers

Posted in Competition Litigation, Merger Notification & Review
Case Note: Tiger Equity (Pty) Ltd and Murray & Roberts (Pty) Ltd / Competition Commission Case 01974 The South African Competition Tribunal has made a very useful decision regarding the practical approach in determining whether a merger arises by way of a number of firms acquiring what would be joint control over a target firm.… Continue Reading

Competition Bureau Releases White Paper on Reverse-Payment Settlements

Posted in Cartels & Other Competition Criminal Matters, Competition Compliance Programs, Competition Litigation
On September 23, 2014, the Competition Bureau (the “Bureau”) released a white paper regarding reverse-payment settlements in pharma litigation, Patent Litigation Settlement Agreements:  A Canadian Perspective. According to the Bureau, the goal of the white paper is to provide background on Canada’s regulatory system governing generic entry, its applicable competition legislation, and the Bureau’s preliminary views… Continue Reading

Competition Bureau Publishes Draft Guidelines for the Production of Electronically Stored Information

Posted in Cartels & Other Competition Criminal Matters, Competition Compliance Programs, Competition Litigation
On August 26, 2014, the Competition Bureau (the “Bureau”) published draft Guidelines for the Production of Electronically Stored Information (the “Draft Guidelines”) for public consultation.  The Draft Guidelines sets out the Bureau’s preferred standard format for receiving electronically stored information during the course of an inquiry or investigation under the Competition Act (the “Act”), whether… Continue Reading

Competition Bureau Plans to Update its Information Bulletin on Corporate Compliance Programs

Posted in Abuse of Dominance, Cartels & Other Competition Criminal Matters, Competition Compliance Programs, Competition Litigation
On July 3, 2014, the Commissioner of Competition announced that changes to the Competition Bureau’s Corporate Compliance Programs Bulletin are planned.  The Bulletin was last amended in 2010 to address the 2009 and 2010 amendments to the Competition Act. Areas under consideration for updating include: the appropriate role of a company’s chief compliance officer; considering… Continue Reading

Section 69(2) of the Competition Act Ruled Unconstitutional in R. v. Durward, 2014 ONSC 4194

Posted in Cartels & Other Competition Criminal Matters, Competition Litigation
On June 27, 2013, Madam Justice B.B. Warkentin of the Ontario Superior Court of Justice held that section 69(2) of the Competition Act violates sections 7 and 11(d) of the Canadian Charter of Rights and Freedoms when applied in criminal proceedings. Section 69(2) establishes the following presumptions: actions taken by an agent of a participant… Continue Reading

The Sasol Decision – An Update on Excessive Pricing in South Africa

Posted in Competition Litigation, Pricing and Distribution
This note summarizes the recent decision of the South African Competition Tribunal, which found Sasol Chemical Industries guilty of excessive pricing. South Africa is one of the few competition law jurisdictions that actively pursues cases of ‘excessive pricing’ by dominant firms.  The Competition Commission had alleged that Sasol had charged domestic customers excessive prices for… Continue Reading

Defending Criminal Prosecutions and Class Action Litigation: An Increasingly Harmonized Defence Strategy

Posted in Cartels & Other Competition Criminal Matters, Competition Litigation
Recent developments in Canadian competition law have caused the defence of criminal prosecutions and class action litigation under the Competition Act to be increasingly intertwined. The most significant of these developments is the Supreme Court of Canada’s trilogy of decisions that make it easier for indirect purchasers to bring competition class action claims. The availability… Continue Reading

Exclusive leases with anchor tenants in South Africa

Posted in Competition Litigation, Monopolization
The South African Competition Commission has recently concluded its investigation into the potential effects on competition of exclusive lease agreements between supermarkets and their landlords. This note explains the implications of the Commission’s decision for firms that rely on exclusive lease agreements.  Arguments for and against exclusive lease agreements Supermarkets often play the role of… Continue Reading

Individual Sentenced to Three Years in Prison for Violating Canada’s Corruption of Foreign Public Officials Act: Will There be a Formal CFPOA Leniency Program in Canada?

Posted in Cartels & Other Competition Criminal Matters, Competition Compliance Programs, Competition Litigation
On May 23, 2014, the first individual in Canada ever convicted of violating Canada’s Corruption of Foreign Public Officials Act (the “CFPOA”) was sentenced to three years in prison. The individual, Nazir Karigar, was convicted of offering or agreeing to bribe a foreign official in contravention of the CFPOA on August 15, 2013, following a… Continue Reading

When Does a Cartel End? – An Update from the South African Competition Appeal Court

Posted in Cartels & Other Competition Criminal Matters, Competition Litigation
Determining precisely when an anti-competitive practice ends has critical implications for the firms involved. Infractions of long duration attract larger fines and damages claims, whereas proving that an infringement stopped before expiry of a defined prescription period may provide a complete ‘time-bar’ defence, allowing the respondent firm to get off scott-free. The South African Competition… Continue Reading

2013 Canadian Antitrust/Competition & Marketing Law Year in Review

Posted in Abuse of Dominance, Cartels & Other Competition Criminal Matters, Competition Compliance Programs, Competition Litigation, Foreign Investment, IP/Competition Interface, Marketing & Advertising, Merger Notification & Review, Monopolization, Pricing and Distribution, Trade Associations
The principal Canadian competition law theme in 2013, as with the year before, was enforcement. Criminal enforcement in the areas of price-fixing, bid-rigging and misleading advertising continued with new guilty pleas against various companies and individuals (e.g. auto parts, air cargo, chocolate, real estate advisory services contracts, gasoline and retail multiple telemarketing schemes). The Competition… Continue Reading

2013 South African Antitrust/Competition & Marketing Law Year in Review

Posted in Abuse of Dominance, Cartels & Other Competition Criminal Matters, Competition Compliance Programs, Competition Litigation, Foreign Investment, IP/Competition Interface, Marketing & Advertising, Merger Notification & Review, Monopolization, Pricing and Distribution, Trade Associations
The year of 2013 provided further opportunity for development of South Africa’s competition policy, law and practice. The year’s highlights included the conclusion of the Competition Commission’s Fast Track Settlement  process involving bid rigging in the construction sector; some important merger decisions; developments in the law on pursuit of private damages; and clarity on numerous… Continue Reading