Bill C-454

1st Session, 39th Parliament,

55-56 Elizabeth II, 2006-2007

house of commons of canada

BILL C-454

An Act to amend the Competition Act and to make consequential amendments to other Acts

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

AMENDMENTS TO THE COMPETITION ACT

1. Section 4.1 of the Competition Act is repealed.

2. Paragraph 10(1)(b) of the Act is amended by striking out the word “or” at the end of subparagraph (ii) and by adding the following after subparagraph (iii):

3. Subsection 45(1) of the Act is replaced by the following:

45. (1) Every one who conspires, combines, agrees or arranges with another person

(a) to limit the facilities for transporting, producing, manufacturing, supplying, storing or dealing in any product,

(b) to prevent, limit or lessen the manufacture or production of a product or to enhance unreasonably the price thereof,

(c) to prevent or lessen competition in the production, manufacture, purchase, barter, sale, storage, rental, transportation or supply of a product, or in the price of insurance on persons or property, or

(d) to otherwise restrain or injure competition,

is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years or to a fine not exceeding twenty-five million dollars or to both.

4. Sections 50 and 51 of the Act are repealed.

5. The portion of section 66 of the Act before paragraph (a) is replaced by the following:

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 liable

6. Subsection 73(1) of the Act is replaced by the following:

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.

7. (1) The portion of subsection 74.1(1) of the French version of the Act before paragraph (a) is replaced by the following:

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 :

(2) Subsection 74.1(1) of the Act is amended by striking out the word “and” at the end of paragraph (b) and by replacing paragraph (c) with the following:

(c) to pay an administrative monetary penalty, in such manner as the court may specify, in an amount not exceeding

(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; and

(3) Section 74.1 of the Act is amended by adding the following after subsection (1):

(4) Subsections 74.1(3) and (4) of the Act are replaced by the following:

(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.

(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 remedying any injury that has resulted, and not with a view to punishment.

(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;

(l) any other relevant factor.

8. The Act is amended by adding the following after section 74.11:

9. Section 75 of the Act is amended by adding the following after subsection (1):

10. Subsection 77(3.1) of the Act is replaced by the following:

(3.1) The Tribunal may make an award of damages under this section to a person granted leave under subsection 103.1(7).

11. (1) The portion of subsection 78(1) of the Act before paragraph (a) is replaced by the following:

78. For the purposes of section 79, “anti-competitive act” means any abusive exploitation of a dominant position in the market, and includes any of the following acts:

(2) 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).

(3) Subsection 78(2) of the Act is repealed.

12. (1) Section 79 of the Act is amended by adding the following after subsection (1):

(2) Subsections 79(3.1) to (3.3) of the Act are replaced by the following:

(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,

(a) 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; and

(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.

(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.

13. Section 79.1 of the English version of the Act is replaced by the following:

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.

14. (1) Subsections 103.1(1) and (2) of the Act are replaced by the following:

103.1 (1) Any person may apply to the Tribunal for leave to make an application under section 75, 77 or 79. The application for leave must be accompanied by an affidavit setting out the facts in support of the person's application under section 75, 77 or 79.

(2) The applicant must serve a copy of the application for leave on the Commissioner and any person against whom the order under section 75, 77 or 79 is sought.

(2) Paragraph 103.1(3)(b) of the Act is replaced by the following:

(b) was the subject of an inquiry that has been discontinued because of a settlement between the Commissioner and the person against whom the order under section 75, 77 or 79 is sought.

(3) Subsection 103.1(4) of the Act is replaced by the following:

(4) The Tribunal shall not consider an application for leave respecting a matter described in paragraph (3)(a) or (b) or a matter that is the subject of an application already submitted to the Tribunal by the Commissioner under section 75, 77 or 79.

(4) Subsection 103.1(7) of the Act is replaced by the following:

(7) The Tribunal may grant leave to make an application under section 75, 77 or 79 if it has reason to believe that the applicant is directly and substantially affected in the applicants' business by any practice referred to in one of those sections that could be subject to an order under that section.

(5) Subsection 103.1(8) of the English version of the Act is replaced by the following:

(8) The Tribunal may set the time within which and the conditions subject to which an application under section 75, 77 or 79 must be made. The application must be made no more than one year after the practice that is the subject of the application has ceased.

(6) Subsection 103.1(10) of the Act is replaced by the following:

(10) The Commissioner may not make an application for an order under section 75, 77 or 79 on the basis of the same or substantially the same facts as are alleged in a matter for which the Tribunal has granted leave under subsection (7), if the person granted leave has already applied to the Tribunal under section 75, 77 or 79.

15. Section 103.2 of the Act is replaced by the following:

103.2 If a person granted leave under subsection 103.1(7) makes an application under section 75, 77 or 79, the Commissioner may intervene in the proceedings.

16. Section 104.1 of the Act is repealed.

17. Subsection 105(1) of the Act is replaced by the following:

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.

18. The portion of subsection 106(1) of the Act before paragraph (a) is replaced by the following:

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 that

19. Paragraphs 110(4)(a) and (b) of the Act are replaced by the following:

(a) the aggregate value of the assets in Canada, determined as of such time and in such manner as may be prescribed, that would be owned by the continuing corporation that would result from the amalgamation or by corporations controlled by the continuing corporation, other than assets that are shares of any of those corporations, would exceed fifty million dollars, or such greater amount as may be prescribed; or

(b) the gross revenues from sales in or from Canada, determined for such annual period and in such manner as may be prescribed, generated from the assets referred to in paragraph (a) would exceed fifty million dollars, or such greater amount as may be prescribed.

CONSEQUENTIAL AMENDMENTS

Competition Tribunal Act

20. Subsection 11(1) of the Competition Tribunal Act is replaced by the following:

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), section 103.1 or 103.3 or subsection 104(1) of the Competition Act and any related matters.

Public Service Modernization Act

21. Paragraph 224(z.18) of the Public Service Modernization Act is repealed.

COORDINATING AMENDMENTS

22. (1) Subsections (2) and (3) apply if Bill C-41, introduced in the 1st session of the 39th Parliament and entitled An Act to amend the Competition Act (the “other Act”), receives royal assent.

(2) If the other Act comes into force after this Act, then, on the coming into force of the other Act, that other Act is repealed.

(3) If the other Act comes into force on the same day as this Act, then this Act is deemed to have come into force after the other Act.