Bill C-472

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First Reading

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	2nd Session, 36th Parliament, 48-49 Elizabeth II, 1999-2000
	The House of Commons of Canada
	BILL C-472
	An Act to amend the Competition Act (conspiracy agreements and right to make private applications), the Competition Tribunal Act (costs and summary dispositions) and the Criminal Code as a consequence.
	Her 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; R.S., c. 19 (2nd Supp.)	COMPETITION ACT
	*1. Section 45 of the Competition Act* is replaced by the following:**
Collusion	45. (1) For the purposes of this section, ``collusion'' means an agreement or arrangement between a person and one or more competitors of the person in relation to the production, supply or acquisition of any product where the person knew, or ought reasonably to have known, that the agreement or arrangement, if implemented, would or would likely have the effect of
	(a) fixing, establishing, controlling or maintaining the minimum price of the product;
	(b) allocating any markets, territories, customers or sales for the product as between the person and the competitor;
	(c) boycotting a competitor or a competitor's suppliers or customers; or
	(d) preventing, eliminating, lessening or otherwise limiting the production or supply of the product.
Idem	(2) Every one who participates in collusion is guilty of an indictable offence and is liable to imprisonment for a term not exceeding five years or to a fine not exceeding ten million dollars or to both.
Proof of Collusion	(3) In any prosecution under subsection (2), the court may infer the existence of collusion from circumstantial evidence with or without direct evidence of communication between or among the alleged participants to the collusion but, for greater certainty, the agreement or arrangement must be proved beyond a reasonable doubt.
Defence	(4) Subject to subsection (5), in a prosecution under subsection (2), the court shall not convict the accused if the collusion relates only to the export of products from Canada.
Exception	(5) Subsection (4) does not apply if the collusion
	(a) has resulted in or is likely to result in a reduction or limitation of the real value of exports of a product;
	(b) has restricted or is likely to restrict any person from entering into or expanding the business of exporting products from Canada; or
	(c) has prevented or lessened or is likely to prevent or lessen competition in the supply of services facilitating the export of products from Canada.
Defences	(6) In a prosecution under subsection (2), the court shall not convict the accused if it finds that the collusion relates only to a service and to standards of competence and integrity that are reasonably necessary for the protection of the public
	(a) in the practice of a trade or profession relating to the service; or
	(b) in the collection and dissemination of information relating to the service.
Exceptions	(7) An agreement or arrangement shall not be considered to be collusion if
	(a) it is between or among only federal financial institutions as described in subsection 49(1);
	(b) it is made only among companies each of which is, in respect of every one of the others, an affiliate;
	(c) notice of it was given to the Commissioner pursuant to subsection 79.2(1);
	(d) it is ancillary to, and reasonably necessary for, another agreement or arrangement among the same participants and the other agreement or arrangement would not itself constitute collusion, when considered on a separate basis; or
	(e) the participants collectively do not account for, or control, at least 25% of the relevant market for the product affected by the agreement or arrangement.
	2. Section 45.1 of the Act is replaced by the following:
Where application made under section 79, 79.1 or 92	45.1 No proceedings may be commenced under subsection 45(1) against a person against whom an order is sought under section 79, 79.1 or 92 on the basis of the same or substantially the same facts as would be alleged in proceedings under that subsection.
	3. That portion of subsection 75(1) immediately before paragraph (a) is replaced by the following:
Jurisdiction of Tribunal where refusal to deal	75. (1) Where on an application by the Commissioner or a person described in subsection 77.1(1), the Tribunal finds that
	4. (1) That portion of subsection 77(2) immediately before paragraph (a) is replaced by the following:
Exclusive dealing and tied selling	(2) Where on an application by the Commissioner, or a person described in subsection 77.1(2), the Tribunal finds that exclusive dealing or tied selling, because it is engaged in by a major supplier of a product in a market or because it is widespread in a market, is likely to
	(2) Subsection 77(3) is replaced by the following:
Market restriction	(3) Where, on application by the Commissioner, or a person described in subsection 77.1(2), the Tribunal finds that market restriction, because it is engaged in by a major supplier of a product or because it is widespread in relation to a product, is likely to substantially lessen competition in relation to the product, the Tribunal may make an order directed to all or any of the suppliers against whom an order is sought prohibiting them from continuing to engage in market restriction and containing any other requirement that, in its opinion, is necessary to restore or stimulate competition in relation to the product.
	5. The Act is amended by adding the following after section 77:
Standing for section 75	77.1 (1) A person who alleges that they are directly affected in their business or are precluded from carrying on business due to their inability to obtain adequate supplies of a product anywhere in a market on usual trade terms may, with leave of the Tribunal, make an application under section 75.
Standing for section 77	(2) A person who alleges that they are directly affected in their business by exclusive dealing, tied selling or market restriction may, with leave of the Tribunal, make an application under section 77.
Limitation	(3) No application may be made under section 75 or 77 by a person referred to in subsection (1) or (2) more than two years after the practice has ceased.
Service	(4) Any person making an application under section 75 or 77 shall serve the person in respect of whom the order is sought and the Commissioner with a copy of the application for leave.
Notice to Commissioner	(5) The Tribunal shall give notice to the Commissioner of its decision on an application for leave pursuant to this section.
Participation by Commissioner	(6) Within 30 days of the granting of leave to a person to make an application under section 75 or 77, the Commissioner may becoming party to the application but, after 30 days, may do so only at the request of or with leave of the Tribunal.
Consent orders	(7) Where an application is made to a court for an order under section 75 or 77 and the parties agree on the terms of the order and such terms on in accordance with the terms of this Act, whether or not any of the terms could have been imposed by the court under this Part, the order agreed to may be filed with the court for immediate registration.
Effect of registration	(8) On being filed under subsection (7), an order shall be registered and, when registered, shall have the same force and effect, and all proceedings may be taken, as if the order had been made by the court.
	6. Subsection 79(7) is replaced by the following:
Duplicate proceedings	(7) No application may be made under this section against a person
	(a) against whom proceedings have been commenced under section 45, or
	(b) against whom an order is sought under section 79.1 or 92
	on the basis of the same or substantially the same facts as would be alleged in the proceedings under section 45, 79.1 or 92, as the case may be.
	7. The Act is amended by adding the following after section 79:
Anti-competit ive Agreements	79.1 (1) Where, on application by the Commissioner, the Tribunal finds that
	(a) a person has entered into an agreement or arrangement with one or more competitors of the person with respect to the production, supply or acquisition of a product; and
	(b) the agreement or arrangement has had, is having or is likely to have the effect of preventing or lessening competition substantially in the market affected by the agreement or arrangement;
	the Tribunal may make an order directed against any person who is a participant in the agreement or arrangement,
	(c) prohibiting the person from carrying into effect or continuing the agreement or arrangement or part of it;
	(d) in addition to or in lieu of making an order under paragraph (c), ordering the person to take such actions as the Tribunal considers reasonable and necessary to overcome any of the effects of the agreement or arrangement or to restore competition in the market including, without limitation, directing modifications to the agreement or arrangement.
Limitation	(2) In making an order under subsection (1), the Tribunal shall make the order in such terms and conditions as will, in its opinion, interfere with the rights of affected persons only to the extent necessary to achieve the purpose of the order.
Exception for limited agreements	(3) The Tribunal shall not make an order under this section where, in its opinion, the duration of the agreement or arrangement is limited to the reasonable time needed to facilitate the entry of a new product, or a new supplier of a product, into a market.
Exception where affiliated	(4) No application may be made under this section in respect of an agreement or arrangement that is entered into only by companies, partnerships or sole proprietorships each of which is, in respect of every one of the others, an affiliate within the meaning of subsection 77(5).
Duplicate proceedings	(5) No application may be made under this section against a person
	(a) against whom proceedings have been commenced under section 45, or
	(b) against whom an order is sought under section 79 or 92
	on the basis of the same or substantially the same facts as would be alleged in the proceedings under section 45, 79 or 92, as the case may be.
Clearance Certificate for sections 45 and 79.1	79.2 (1) Where, on application by a person, the Commissioner is satisfied that an agreement or arrangement which that person is about to enter into would not likely have the effect of preventing or lessening competition substantially
	(a) in a trade, industry or profession;
	(b) among the sources from which a trade, industry or profession obtains a product;
	(c) among the outlets through which a trade, industry or profession disposes of a product, or
	(d) otherwise than as described in paragraphs (a) to (c);
	the Commissioner may issue a clearance certificate to the effect that he is so satisfied.
Effect of clearance certificate	(2) No proceedings may be commenced under section 45 or 79.1 in respect of an agreement or arrangement for which a clearance certificate is in effect solely on the basis of information that is the same or substantially the same as the information on the basis of which the certificate was issued.
Restriction	(3) The Commissioner shall not issue a clearance certificate under subsection (1) if an attempt has been made by any of the persons who are about to enter into the agreement or arrangement to coerce any person to become a participant in the agreement or arrangement.
Expeditious consideration	(4) Commissioner shall consider any request for a clearance certificate under this section as expeditiously as possible.
Period of validity	(5) A clearance certificate issued by the Commissioner under this section is valid for a period of three years from the date on which it was issued, or for such shorter period as the Commissioner may specify in the certificate.
	8. Section 90 is replaced by the following:
Non-applicati on of sections 45, 77 and 79.1	90. Sections 45, 77 as it applies to exclusive dealing, and 79.1 do not apply in respect of a specialization agreement, or any of its modifications, that is registered.
	9. Section 98 of the Act is replaced by the following:
Duplicate proceedings	(7) No application may be made under section 92 against a person
	(a) against whom proceedings have been commenced under section 45, or
	(b) against whom an order is sought under section 79 or 79.1
	on the basis of the same or substantially the same facts as would be alleged in the proceedings under section 45, 79 or 79.1, as the case may be.
	10. (1) Subsection 104(1) is replaced by the following
Interim order	104. (1) Where an application has been made for an order under this Part, other than an interim order under section 100, the Tribunal, on application by the Commissioner or a person having applied under section 75 or 77, may issue such interim order as it considers appropriate, having regard to the principles ordinarily considered by superior courts when granting interlocutory or injunctive relief.
	11. The Act is amended by adding the following after section 104:
Temporary order	104.1 (1) The Commissioner may make a temporary order prohibiting a person from doing an act or a thing that could, in the opinion of the Commissioner, constitute an anti-competitive act or requiring the person to take the steps that the Commissioner considers necessary to prevent injury to competition or harm to another person if
	(a) the Commissioner has commenced an inquiry under subsection 10(l) in regard to whether the person has engaged in conduct that is reviewable under section 79; and
	(b) the Commissioner considers that in the absence of a temporary order
	(i) injury to competition that cannot adequately be remedied by the Tribunal is likely to occur, or
	(ii) a person is likely to be eliminated as a competitor, suffer a significant loss of market share, suffer a significant loss of revenue, or suffer other harm that cannot be adequately remedied by the Tribunal.
Notice not required	(2) The Commissioner is not obliged to give notice to or receive representations from any person before making a temporary order.

Bill C-472

BILL C-472

COMPETITION ACT