C-19First Session, Thirty-eighth Parliament,53 Elizabeth II, 2004HOUSE OF COMMONS OF CANADABILL C-19An Act to amend the Competition Act and to make consequential amendments to other Actsfirst reading, November 2, 2004THE MINISTER OF INDUSTRY90287Also available on the Parliament of Canada Web Site at the following address:
http://www.parl.gc.caSUMMARYThis enactment amends the Competition Act and includes the introduction of an administrative monetary penalty in respect of cases of abuse of dominant position, an increase in the amount of administrative monetary penalties in respect of deceptive marketing cases and the repeal of all airline industry specific provisions and criminal provisions dealing with price discrimination, predatory pricing, discriminatory promotional allowances and geographic price discrimination. This enactment also provides that the court may make an order in respect of cases of false or misleading representations to require the person who engaged in the reviewable conduct to compensate persons affected by the conduct and issue an interim injunction order to freeze assets where the Commissioner of Competition intends to ask for that order. This enactment also provides for consequential amendments to other Acts.902871st Session, 38th Parliament,53 Elizabeth II, 2004house of commons of canadaBILL C-19An Act to amend the Competition Act and to make consequential amendments to other ActsHer Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:R.S. , c. C-34; c. 19 (2nd Supp.), s. 19
AMENDMENTS TO THE COMPETITION ACT2000, c. 15, s. 11
1. Section 4.1 of the Competition Act is repealed.1999, c. 31, s. 50(F)
2. Sections 50 and 51 of the Act are repealed.1999, c. 2, s. 19
3. The portion of section 66 of the Act before paragraph (a) is replaced by the following:Contravention of Part VII.1 or VIII order
66. Every person who contravenes an order made under Part VII.1, except paragraph 74.1(1)(c) and subsection 74.1(1.1), or under Part VIII, except subsection 79(3.1), is guilty of an offence and liable2002, c. 8, par. 198(c), c. 16, s. 8
4. Subsection 73(1) of the Act is replaced by the following:Jurisdiction of Federal Court
73. (1) Subject to this section, the Attorney General of Canada may institute and conduct any prosecution or other proceedings under section 34, any of sections 45 to 49 and section 61 or, where the proceedings are on indictment, under section 52, 52.1, 53, 55, 55.1 or 66, in the Federal Court, and for the purposes of the prosecution or other proceedings, the Federal Court has all the powers and jurisdiction of a superior court of criminal jurisdiction under the Criminal Code and under this Act.1999, c. 2, s. 22
(1) The portion of subsection 74.1(1) of the French version of the Act before paragraph (a) is replaced by the following:Décision et ordonnance
74.1 (1) Le tribunal qui conclut, à la suite d’une demande du commissaire, qu’une personne a ou a eu un comportement susceptible d’examen visé par la présente partie peut ordonner à celle-ci :1999, c. 2, s. 22
(2) Subparagraphs 74.1(1)(c)(i) and (ii) of the Act are replaced by the following:(i) in the case of an individual, $750,000 and, for each subsequent order, $1,000,000, or(ii) in the case of a corporation, $10,000,000 and, for each subsequent order, $15,000,000.(3) Section 74.1 of the Act is amended by adding the following after subsection (1):Order
(1.1) Where the court determines that a person is engaging in or has engaged in reviewable conduct under paragraph 74.01(1)(a), the court may also order the person to pay an amount, not exceeding the total of the amounts paid for the products that were the object of the conduct, to be distributed among the persons to whom the products were sold — not including those persons who bought the products for resale or distribution — in any manner and on any terms that the court considers appropriate. The court may specify in the order any terms that it considers necessary to implement its decision, including(a) specifying how the payment is to be administered;(b) appointing an administrator to administer the payment and specifying the terms of administration;(c) requiring the person against whom the order is made to pay the administrative costs related to the payment as well as the fees to be paid to an administrator;(d) requiring that potential claimants be notified in the time and manner specified by the court;(e) specifying the time and manner for making claims; and(f) specifying the conditions for the admissibility of claimants.Not-for-profit organization
(1.2) The court may also designate in the order a not-for-profit organization in Canada that benefits persons who have been affected or are likely to be affected by reviewable conduct under this Part — or any other person or organization that the court considers appropriate in the circumstances — to receive any or all of the amount of the payment that remains unclaimed or undistributed in the manner and on the terms set out in the order.Variation of order
(1.3) The court may vary the order on application by the Commissioner or the person against whom the order was made.1999, c. 2, s. 22
(4) Subsections 74.1(3) and (4) of the Act are replaced by the following:Saving
(3) No order may be made against a person under paragraph (1)(b) or (c) or subsection (1.1) where the person establishes that the person exercised due diligence to prevent the reviewable conduct from occurring.Purpose of order
(4) The terms of an order made against a person under paragraph (1)(b) or (c) or subsection (1.1) shall be determined with a view to promoting conduct by that person that is in conformity with the purposes of this Part and not with a view to punishment.1999, c. 2, s. 22
(5) Subsection 74.1(5) of the Act is amended by striking out the word “and” at the end of paragraph (g) and by replacing paragraph (h) with the following:(h) the gross revenue from sales affected by the conduct;(i) the financial position of the person against whom the order is made;(j) any decision of the court in relation to an application for an order under subsection (1.1);(k) whether any restitution has been made voluntarily; and(l) any other relevant factor.6. The Act is amended by adding the following after section 74.11:Interim injunction
74.111 (1) Where a court finds, on application by the Commissioner, a strong prima facie case that a person is engaging in or has engaged in reviewable conduct under paragraph 74.01(1)(a) and the court is satisfied that the person, being the owner or the person having possession or control of articles within the jurisdiction of the court, is disposing of or is likely to dispose of those articles by any means, the court may issue an interim injunction forbidding the owner or any person having possession or control of the articles from disposing of or otherwise dealing with the articles other than in the manner and on the terms specified in the injunction.Statement to be included
(2) Any application for an injunction under subsection (1) shall include a statement that the Commissioner has applied, or intends to apply, for an order under subsection 74.1(1.1).Where court shall not issue injunction
(3) The court shall not issue an injunction where the person in respect of whom the injunction is sought establishes that the disposal of the articles will not render an order under subsection 74.1(1.1) unenforceable.Duration
(4) Subject to subsection (7), the injunction has effect, or may be extended on application by the Commissioner, for any period that the court considers necessary and sufficient to meet the circumstances of the case.Notice of application by Commissioner
(5) Subject to subsection (6), at least forty-eight hours’ notice of an application referred to in subsection (1) or (4) shall be given by or on behalf of the Commissioner to the person in respect of whom the injunction or extension is sought.Ex parte application
(6) The court may proceed ex parte with an application made under subsection (1) where it is satisfied that subsection (5) cannot reasonably be complied with, where the urgency of the situation is such that service of the notice in accordance with subsection (5) would not be in the public interest or where service of the notice might defeat the purpose of the injunction.Duration of ex parte injunction
(7) An injunction issued ex parte has effect for the period that is specified in it, not exceeding seven days, unless, on further application made on notice as provided in subsection (5), the court extends the injunction for any additional period that it considers necessary and sufficient.Submissions to set aside
(8) On application of the person against whom an ex parte injunction is made, the court may make an order setting aside the injunction or varying it subject to any conditions that it considers appropriate if the person establishes that the disposal of the articles will not render an order under subsection 74.1(1.1) unenforceable.Notice of application
(9) A person who makes an application under subsection (8) shall give the Commissioner forty-eight hours written notice of the application.Duty of Commissioner
(10) Where an injunction issued under this section is in effect, the Commissioner shall proceed as expeditiously as possible to complete the inquiry under section 10 arising out of the conduct in respect of which the injunction was issued.Definition of “dispose”
(11) For the purposes of this section, “dispose” includes removing from the jurisdiction of the court, depleting the value of or disposing of by lease.2000, c. 15, s. 13(2)
7. (1) Subsection 78(1) of the Act is amended by adding the word “and” at the end of paragraph (h) and by repealing paragraphs (j) and (k).2000, c. 15, s. 13(3)
(2) Subsection 78(2) of the Act is repealed.2002, c. 16, s. 11.4
8. Subsections 79(3.1) to (3.3) of the Act are replaced by the following:Administrative monetary penalty
(3.1) Where the Tribunal makes an order against a person under subsection (1) or (2), it may also order them to pay, in any manner that the Tribunal may specify, an administrative monetary penalty in an amount not greater than $10,000,000 and, for each subsequent order under either of those subsections, an amount not greater than $15,000,000.Aggravating or mitigating factors
(3.2) In determining the amount of an administrative monetary penalty, the Tribunal shall take into account the following:(a) the frequency and duration of the practice;(b) injury to competition in the relevant market;(c) the history of compliance with this Act by the person against whom the order is made;(d) the gross revenue from sales affected by the practice;(e) any actual or anticipated profits generated by the practice;(f) the financial position of the person against whom the order is made; and(g) any other relevant factor. Purpose of order
(3.3) The purpose of an order made against a person under subsection (3.1) is to promote practices by that person that are in conformity with the purposes of this section and not to punish that person.2002, c. 16, s. 11.5
9. Section 79.1 of the English version of the Act is replaced by the following:Unpaid monetary penalty
79.1 The amount of an administrative monetary penalty imposed on a person under subsection 79(3.1) is a debt due to Her Majesty in right of Canada and may be recovered as such from that person in a court of competent jurisdiction.2000, c. 15, s. 15; 2002, c. 16, s. 13.1
10. Section 104.1 of the Act is repealed.2002, c. 16, s. 14
11. Subsection 105(1) of the Act is replaced by the following:Consent agreement
105. (1) The Commissioner and a person in respect of whom the Commissioner has applied or may apply for an order under this Part, other than an interim order under section 103.3, may sign a consent agreement.2002, c. 16, s. 14
12. The portion of subsection 106(1) of the Act before paragraph (a) is replaced by the following:Rescission or variation of consent agreement or order
106. (1) The Tribunal may rescind or vary a consent agreement or an order made under this Part other than an order under section 103.3 or a consent agreement under section 106.1, on application by the Commissioner or the person who consented to the agreement, or the person against whom the order was made, if the Tribunal finds thatCONSEQUENTIAL AMENDMENTSR.S., c. 19 (2nd Supp.)
Competition Tribunal Act2002, c. 16, s. 19
13. Subsection 11(1) of the Competition Tribunal Act is replaced by the following:Hearing of applications
11. (1) The Chairman of the Tribunal, sitting alone, or a judicial member designated by the Chairman, sitting alone, may hear and dispose of applications under section 74.111, subsection 100(1) or section 103.1 or 103.3 of the Competition Act and any related matters.2003, c. 22
Public Service Modernization Act14. Paragraph 224(z.18) of the Public Service Modernization Act is repealed.Published under authority of the Speaker of the House of Commons
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