An Act to amend the Competition Act and the Competition Tribunal Act
S.C. 2002, c. 16
Assented to 2002-06-04
An Act to amend the Competition Act and the Competition Tribunal Act
SUMMARY
This enactment amends the Competition Act and the Competition Tribunal Act. The amendments include the following:
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amendments to facilitate cooperation with foreign competition authorities for the enforcement of civil competition and fair trade practices laws;
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amendments prohibiting deceptive prize notices;
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amendments streamlining the Competition Tribunal process by providing for cost awards, summary dispositions and references;
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amendments broadening the scope under which the Tribunal may issue temporary orders; and
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some housekeeping items.
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.), s. 19 COMPETITION ACT
Marginal note:R.S., c. 19, (2nd Supp.), s. 24; 1999, c. 2, par. 37(d)
1. Paragraph 11(1)(b) of the Competition Act is replaced by the following:
(b) produce to the Commissioner or the authorized representative of the Commissioner within a time and at a place specified in the order, a record, a copy of a record certified by affidavit to be a true copy, or any other thing, specified in the order; or
2. Section 18 of the Act is amended by adding the following after subsection (1):
Marginal note:Certified copies
(1.1) The Commissioner need not return any copy of a record produced pursuant to section 11.
2.1 (1) Subsection 29(1) of the Act is amended by striking out the word “or” at the end of paragraph (c), by adding the word “or” at the end of paragraph (d) and by adding the following after paragraph (d):
(e) any information provided voluntarily pursuant to this Act.
Marginal note:R.S., c. 19 (2nd Supp.), s. 26
(2) Subsection 29(2) of the Act is replaced by the following:
Marginal note:Exception
(2) This section does not apply in respect of any information that has been made public or any information the communication of which was authorized by the person who provided the information.
3. The Act is amended by adding the following before the heading “PART IV”:
PART III MUTUAL LEGAL ASSISTANCE
Interpretation
Marginal note:Definitions
30. The definitions in this section apply in this Part.
“agreement”
« accord »
“agreement” means a treaty, convention or other international agreement to which Canada is a party that provides for mutual legal assistance in competition matters, other than a matter in respect of which the Mutual Legal Assistance in Criminal Matters Act applies.
“conduct”
« comportement »
“conduct” means conduct or matters within the meaning of the relevant agreement in respect of which mutual legal assistance may be requested in accordance with this Part.
“data”
« données »
“data” means representations, in any form, of information or concepts.
“foreign state”
« État étranger »
“foreign state” means a country other than Canada, and includes any international organization of states.
“judge”
« juge »
“judge” means
(a) in Ontario, a judge of the Superior Court of Justice;
(b) in Quebec, a judge of the Superior Court;
(c) in Nova Scotia, British Columbia, Newfoundland, the Yukon Territory and the Northwest Territories, a judge of the Supreme Court, and in Nunavut, a judge of the Nunavut Court of Justice;
(d) in New Brunswick, Manitoba, Saskatchewan and Alberta, a judge of the Court of Queen’s Bench;
(e) in Prince Edward Island, a judge of the trial division of the Supreme Court; and
(f) in any province or territory, a judge of the Federal Court — Trial Division.
Functions of the Minister of Justice
Marginal note:Agreements respecting mutual legal assistance
30.01 Before Canada enters into an agreement, the Minister of Justice must be satisfied that
(a) the laws of the foreign state that address conduct that is similar to conduct prohibited or reviewable under this Act are, in his or her opinion, substantially similar to the relevant provisions of this Act, regardless of whether the conduct is dealt with criminally or otherwise;
(b) any record or thing provided by Canada under the agreement will be protected by laws respecting confidentiality that are, in his or her opinion, substantially similar to Canadian laws;
(c) the agreement contains provisions in respect of
(i) the circumstances in which Canada may refuse, in whole or in part, to approve a request, and
(ii) the confidentiality protections that will be afforded to any record or thing provided by Canada;
(d) the agreement contains the following undertakings by the foreign state, namely,
(i) that it will provide assistance to Canada comparable in scope to that provided by Canada,
(ii) that any record or thing provided by Canada will be used only for the purpose for which it was requested,
(iii) that any record or thing provided by Canada will be used subject to any terms and conditions on which it was provided, including conditions respecting applicable rights or privileges under Canadian law,
(iv) that, at the conclusion of the investigation or proceedings in respect of which any record or thing was provided by Canada, the foreign state will return the record or thing and any copies to Canada or, with the consent of Canada, return the record or thing to Canada and destroy any copies,
(v) subject to subparagraph (ii), that it will, to the greatest extent possible consistent with its laws, keep confidential any record or thing obtained by it pursuant to its request, and oppose any application by a third party for disclosure of the record or thing, and
(vi) that it will promptly notify the Minister of Justice in the event that the confidentiality protections contained in the agreement have been breached; and
(e) the agreement contains a provision in respect of the manner in which it may be terminated.
Publication of Agreements
Marginal note:Publication in Canada Gazette
30.02 (1) An agreement must be published in the Canada Gazette no later than 60 days after the agreement comes into force, unless it has already been published under subsection (2).
Marginal note:Publication in Canada Treaty Series
(2) An agreement may be published in the Canada Treaty Series and, if so published, the publication must be no later than 60 days after the agreement comes into force.
Marginal note:Judicial notice
(3) Agreements published in the Canada Gazette or the Canada Treaty Series are to be judicially noticed.
Requests Made to Canada from Abroad
Requests
Marginal note:Requests
30.03 The Minister of Justice is responsible for dealing with a request made by a foreign state under an agreement, in accordance with the agreement and this Part.
Search and Seizure
Marginal note:Application of sections 15, 16 and 19
30.04 Sections 15, 16 and 19 apply, with any modifications that the circumstances require, in respect of a search or a seizure under this Part, except to the extent that those sections are inconsistent with this Part.
Marginal note:Approval of request for search and seizure
30.05 (1) If the Minister of Justice approves a request of a foreign state to have a search and seizure carried out in respect of conduct that is the subject of the request, the Minister of Justice shall provide the Commissioner with any documents or information necessary to apply for a search warrant.
Marginal note:Application for search warrant
(2) The Commissioner or the authorized representative of the Commissioner shall apply ex parte for a search warrant to a judge.
Marginal note:Warrant for entry of premises
30.06 (1) A judge to whom an application is made under subsection 30.05(2) may issue a search warrant authorizing the person named in it to execute it anywhere in Canada where the judge is satisfied by information on oath or solemn affirmation that there are reasonable grounds to believe that
(a) conduct that is the subject of a request made by a foreign state is taking place, has taken place or is about to take place;
(b) evidence in respect of the conduct referred to in paragraph (a) will be found in any premises; and
(c) it would not, in the circumstances, be appropriate to make an order under subsection 30.11(1).
Marginal note:Authorization
(2) A search warrant issued under subsection (1) authorizes the person named in it to enter the premises specified in the warrant, subject to any conditions that may be specified in the warrant, and to search the premises for any record or thing specified in the warrant and to examine and seize it.
Marginal note:Hearing re execution
(3) A judge who issues a search warrant under subsection (1) shall fix a time and place for a hearing to consider the execution of the warrant as well as the report referred to in section 30.07.
Marginal note:Contents of warrant
(4) A search warrant issued under subsection (1) must
(a) set out the time and place for the hearing mentioned in subsection (3);
(b) state that, at that hearing, an order will be sought for the sending to the foreign state of the records or things seized in execution of the warrant; and
(c) state that every person from whom a record or thing is seized in execution of the warrant and any person who claims to have an interest in a record or thing so seized may make representations at the hearing before any order is made concerning the record or thing.
Marginal note:Duty of persons in control of premises
(5) Every person who is in possession or control of any premises, record or thing in respect of which a search warrant is issued under subsection (1) shall, on presentation of the warrant, permit the person named in the warrant to enter the premises, search the premises and examine the record or thing and seize it.
Marginal note:Where admission or access refused
(6) Where a person, in executing a search warrant issued under subsection (1), is refused access to any premises, record or thing or where the Commissioner believes on reasonable grounds that access will be refused, the judge who issued the warrant or a judge of the same court, on the ex parte application of the Commissioner or the authorized representative of the Commissioner, may by order direct a peace officer to take any steps that the judge considers necessary to give access to the person named in the warrant.
Marginal note:Report
30.07 (1) The person who executes a search warrant shall, at least five days before the time of the hearing to consider its execution, file with the court of which the judge who issued the warrant is a member a written report concerning the execution of the warrant that includes a general description of the records or things seized.
Marginal note:Copy to Minister of Justice
(2) The person who files the report under subsection (1) shall send a copy of it to the Minister of Justice promptly after its filing.
Marginal note:Sending abroad
30.08 (1) At the hearing referred to in subsection 30.06(3), after having considered any representations of the Minister of Justice, the Commissioner, the person from whom a record or thing was seized and any person who claims to have an interest in the record or thing, the judge who issued the search warrant or another judge of the same court may
(a) where the judge is not satisfied that the warrant was executed according to its terms and conditions or where the judge is satisfied that an order should not be made under paragraph (b), order that a record or thing seized be returned to
(i) the person from whom it was seized, if possession of it by that person is lawful, or
(ii) the lawful owner or the person who is lawfully entitled to its possession, if the owner or that person is known and possession of the record or thing by the person from whom it was seized is unlawful; or
(b) in any other case, order that a record or thing seized be sent to the foreign state mentioned in subsection 30.05(1) and include in the order any terms and conditions that the judge considers desirable, including terms and conditions
(i) necessary to give effect to the request mentioned in that subsection,
(ii) in respect of the preservation and return to Canada of any record or thing seized, and
(iii) in respect of the protection of the interests of third parties.
Marginal note:Requiring record, etc., at hearing
(2) At the hearing mentioned in subsection (1), the judge may require that a record or thing seized be brought before him or her.
Marginal note:Terms and conditions
30.09 No record or thing seized that has been ordered under section 30.08 to be sent to a foreign state shall be so sent until the Minister of Justice is satisfied that the foreign state has agreed to comply with any terms or conditions imposed in respect of the sending abroad of the record or thing.
Evidence for Use Abroad
Marginal note:Approval of request to obtain evidence
30.1 (1) If the Minister of Justice approves a request of a foreign state to obtain, by means of an order of a judge, evidence in respect of conduct that is the subject of the request, the Minister of Justice shall provide the Commissioner with any documents or information necessary to apply for the order.
Marginal note:Application for order
(2) The Commissioner or the authorized representative of the Commissioner shall apply ex parte to a judge for an order for the gathering of evidence.
Marginal note:Evidence-gathering order
30.11 (1) A judge to whom an application is made under subsection 30.1(2) may make an order for the gathering of evidence where the judge is satisfied that there are reasonable grounds to believe that
(a) conduct that is the subject of a request made by a foreign state is taking place, has taken place or is about to take place; and
(b) there will be found in Canada evidence in respect of the conduct referred to in paragraph (a).
Marginal note:Provisions of order
(2) An order made under subsection (1) must provide for the manner in which the evidence is to be obtained in order to give effect to the request mentioned in subsection 30.1(1) and may
(a) order the examination, on oath or otherwise, of a person named in the order, order the person to attend at the place fixed by the person designated under paragraph (c) for the examination and to remain in attendance until he or she is excused by the person so designated, order the person so named, where appropriate, to make a copy of a record or to make a record from data and to bring the copy or record with him or her, and order the person so named to bring with him or her any record or thing in his or her possession or control, in order to produce them to the person before whom the examination takes place;
(b) order a person named in the order to make a copy of a record or to make a record from data and to produce the copy or record to the person designated under paragraph (c), order the person to produce any record or thing in his or her possession or control to the person so designated and provide, where appropriate, for any affidavit or certificate that, pursuant to the request, is to accompany any copy, record or thing so produced; and
(c) designate a person before whom the examination referred to in paragraph (a) is to take place or to whom the copies, records, things, affidavits and certificates mentioned in paragraph (b) are to be produced.
Marginal note:Designation of judge
(3) For greater certainty, a judge who makes an order under subsection (1) may designate himself or herself or another person, including a judge of a Canadian or foreign court, under paragraph (2)(c).
Marginal note:Order effective throughout Canada
(4) An order made under subsection (1) may be executed anywhere in Canada.
Marginal note:Terms and conditions of order
(5) An order made under subsection (1) may include any terms or conditions that the judge considers desirable, including those relating to the protection of the interests of a person named in the order and of third parties.
Marginal note:Variation
(6) The judge who made the order under subsection (1) or another judge of the same court may vary its terms and conditions.
Marginal note:Other laws to apply
(7) A person named in an order made under subsection (1) shall answer questions and produce records or things to the person designated under paragraph (2)(c) in accordance with the laws of evidence and procedure in the foreign state that presented the request, but may refuse if answering the questions or producing the records or things would disclose information that is protected by the Canadian law of non-disclosure of information or privilege.
Marginal note:Execution of order to be completed
(8) If a person refuses to answer a question or to produce a record or thing, the person designated under paragraph (2)(c)
(a) may, if he or she is a judge of a Canadian or foreign court, make immediate rulings on any objections or issues within his or her jurisdiction; or
(b) shall, in any other case, continue the examination and ask any other question or request the production of any other record or thing mentioned in the order.
Marginal note:Statement of reasons for refusal
(9) A person named in an order made under subsection (1) who, under subsection (7), refuses to answer one or more questions or to produce certain records or things shall, within seven days, give to the person designated under paragraph (2)(c), unless that person has already ruled on the objection under paragraph (8)(a), a detailed statement in writing of the reasons on which the person bases the refusal to answer each question that the person refuses to answer or to produce each record or thing that the person refuses to produce.
Marginal note:Expenses
(10) A person named in an order made under subsection (1) is entitled to be paid the travel and living expenses to which the person would be entitled if the person were required to attend as a witness before the judge who made the order.
Marginal note:Contents of order
(11) An order made under subsection (1) must state that a person named in the order, and any person who claims an interest in any record or thing provided pursuant to the order, may make representations referred to in subsection 30.13(2) before any order is made under subsection 30.13(1).
Marginal note:Report
30.12 (1) A person designated under paragraph 30.11(2)(c) in an order made under subsection 30.11(1) shall make a report to the judge who made the order, or another judge of the same court, accompanied by
(a) a transcript of every examination held under the order;
(b) a general description of every record or thing produced to the person under the order and, if the judge so requires, a record or thing itself; and
(c) a copy of every statement given under subsection 30.11(9) of the reasons for a refusal to answer any question or to produce any record or thing.
Marginal note:Copy to Minister of Justice
(2) The person designated under paragraph 30.11(2)(c) shall send a copy of the report to the Minister of Justice promptly after it is made.
Marginal note:Refusals
(3) If any reasons contained in a statement given under subsection 30.11(9) are based on the Canadian law of non-disclosure of information or privilege, a judge to whom a report is made shall determine whether those reasons are well-founded and, if the judge determines that they are, that determination shall be mentioned in any order that the judge makes under section 30.13, but if the judge determines that they are not, the judge shall order that the person named in the order made under subsection 30.11(1) answer the questions or produce the records or things.
Marginal note:Refusals based on foreign law
(4) A copy of every statement given under subsection 30.11(9) that contains reasons that purport to be based on a law that applies to the foreign state shall be appended to any order that the judge makes under section 30.13.
Marginal note:Sending abroad
30.13 (1) A judge to whom a report is made under subsection 30.12(1) may order that there be sent to the foreign state mentioned in subsection 30.1(1)
(a) the report, any transcript referred to in paragraph 30.12(1)(a) and any record or thing produced;
(b) a copy of the order made under subsection 30.11(1) accompanied by a copy of any statement given under subsection 30.11(9) that contains reasons that purport to be based on a law that applies to the foreign state; and
(c) any determination made under subsection 30.12(3) that the reasons contained in a statement given under subsection 30.11(9) are well-founded.
Marginal note:Terms and conditions
(2) An order made under subsection (1) may include any terms or conditions that the judge considers desirable, after having considered any representations of the Minister of Justice, the Commissioner, the person who produced any record or thing to the person designated under paragraph 30.11(2)(c) and any person who claims to have an interest in any record or thing so produced, including terms and conditions
(a) necessary to give effect to the request mentioned in subsection 30.1(1);
(b) in respect of the preservation and return to Canada of any record or thing so produced; and
(c) in respect of the protection of the interests of third parties.
Marginal note:Further execution
(3) The execution of an order made under subsection 30.11(1) that was not completely executed because of a refusal, by reason of a law that applies to the foreign state, to answer one or more questions or to produce certain records or things to the person designated under paragraph 30.11(2)(c) may be continued, unless a ruling has already been made on the objection under paragraph 30.11(8)(a), if a court of the foreign state or a person designated by the foreign state determines that the reasons are not well-founded and the foreign state so advises the Minister of Justice.
Marginal note:Leave of judge required
(4) No person named in an order made under subsection 30.11(1) whose reasons for refusing to answer a question or to produce a record or thing are determined not to be well-founded, or whose objection has been ruled against under paragraph 30.11(8)(a), shall, during the continued execution of the order or ruling, refuse to answer that question or to produce that record or thing to the person designated under paragraph 30.11(2)(c), except with the permission of the judge who made the order or ruling or another judge of the same court.
Marginal note:Terms and conditions
30.14 No record or thing that has been ordered under section 30.13 to be sent to the foreign state mentioned in subsection 30.1(1) shall be so sent until the Minister of Justice is satisfied that the foreign state has agreed to comply with any terms or conditions imposed in respect of the sending abroad of the record or thing.
Marginal note:Approval of request to obtain evidence by video link, etc.
30.15 (1) If the Minister of Justice approves a request of a foreign state to compel a person to provide evidence or a statement in respect of conduct that is the subject of the request by means of technology that permits the virtual presence of the person in the territory over which the foreign state has jurisdiction, or that permits the person to be heard and examined, the Minister of Justice shall provide the Commissioner with any documents or information necessary to apply for the order.
Marginal note:Application for order
(2) The Commissioner or the authorized representative of the Commissioner shall apply ex parte to a judge for an order for the taking of evidence or a statement from the person.
Marginal note:Order for video link, etc.
30.16 (1) A judge to whom an application is made under subsection 30.15(2) may make an order for the taking of evidence or a statement from a person where the judge is satisfied that there are reasonable grounds to believe that
(a) conduct that is the subject of a request made by a foreign state is taking place, has taken place or is about to take place; and
(b) the foreign state believes that the person’s evidence or statement would be relevant to the investigation or proceedings in respect of the conduct referred to in paragraph (a).
Marginal note:Provisions of order
(2) An order made under subsection (1) shall order the person
(a) to attend at the place fixed by the judge for the taking of the evidence or statement by means of the technology and to remain in attendance until the person is excused by the authorities of the foreign state;
(b) to answer any questions put to the person by the authorities of the foreign state or by any person authorized by those authorities;
(c) to make a copy of a record or to make a record from data and to bring the copy or record, when appropriate; and
(d) to bring any record or thing in his or her possession or control, when appropriate, in order to show it to the authorities by means of the technology.
Marginal note:Order effective throughout Canada
(3) An order made under subsection (1) may be executed anywhere in Canada.
Marginal note:Terms and conditions of order
(4) An order made under subsection (1) may include any terms or conditions that the judge considers desirable, including those relating to the protection of the interests of the person named in it and of third parties.
Marginal note:Variation
(5) The judge who made the order under subsection (1) or another judge of the same court may vary its terms and conditions.
Marginal note:Expenses
(6) A person named in an order made under subsection (1) is entitled to be paid the travel and living expenses to which the person would be entitled if the person were required to attend as a witness before the judge who made the order.
Marginal note:Other laws to apply
30.17 (1) When a person gives evidence or a statement pursuant to an order made under subsection 30.16(1), the person shall give the evidence or statement as though he or she were physically before the court or tribunal outside Canada, in accordance with the laws of evidence and procedure applicable to that court or tribunal, but may refuse to give evidence or a statement, in whole or in part, if giving the evidence or statement would disclose information that is protected by the Canadian law of non-disclosure of information or privilege.
Marginal note:Statement of reasons for refusal
(2) A person named in an order made under subsection 30.16(1) who refuses to give evidence or a statement on the grounds that it would disclose information that is protected by the Canadian law of non-disclosure of information or privilege shall, within seven days, give to the judge who made the order or another judge of the same court a detailed statement in writing of the reasons on which the person bases each refusal.
Marginal note:Refusals
(3) A judge to whom a statement is given under subsection (2) shall determine whether the reasons for refusal are well-founded and, if the judge determines that they are not, the judge shall order that the person named in the order made under subsection 30.16(1) give the evidence or statement.
Marginal note:Contempt of court in Canada
(4) When a witness gives evidence under section 30.16, the Canadian law relating to contempt of court applies with respect to a refusal by the person to answer a question or to produce a record or thing as ordered by the judge under that section.
Marginal note:Arrest warrant
30.18 (1) The judge who made the order under subsection 30.11(1) or 30.16(1) or another judge of the same court may issue a warrant for the arrest of the person named in the order where the judge is satisfied, on an information in writing and under oath or solemn declaration, that
(a) the person did not attend or remain in attendance as required by the order or is about to abscond;
(b) the order was personally served on the person; and
(c) in the case of an order made under subsection 30.11(1), the person is likely to give material evidence and, in the case of an order made under subsection 30.16(1), the foreign state believes that the testimony of the person would be relevant to the investigation or proceedings in respect of the conduct.
Marginal note:Warrant effective throughout Canada
(2) A warrant issued under subsection (1) may be executed anywhere in Canada by any peace officer.
Marginal note:Order
(3) A peace officer who arrests a person in execution of a warrant issued under subsection (1) shall, without delay, bring the person or cause the person to be brought before the judge who issued the warrant or another judge of the same court who may, to ensure compliance with the order made under subsection 30.11(1) or 30.16(1), order that the person be detained in custody or released on recognizance, with or without sureties.
Marginal note:Copy of information
(4) A person who is arrested in execution of a warrant issued under subsection (1) is entitled to receive, on request, a copy of the information on which the warrant was issued.
Lending Exhibits
Marginal note:Approval of loan request
30.19 (1) If the Minister of Justice approves a request of a foreign state under an agreement to have an exhibit that was admitted in evidence in a proceeding in respect of an offence in a court in Canada or in a proceeding before the Tribunal lent to the foreign state, the Minister shall provide the Commissioner with any documents or information necessary to apply for a loan order.
Marginal note:Application for loan order
(2) The Commissioner or the authorized representative of the Commissioner shall apply for a loan order in respect of the exhibit to the court that has possession of the exhibit, or to the Tribunal if it has possession of the exhibit, after having given reasonable notice to the parties to the proceedings and to
(a) the Attorney General of Canada, in the case of an application to the Federal Court;
(b) the attorney general of the province in which the exhibit is located, in the case of an application to a court other than the Federal Court; or
(c) the Chairman of the Tribunal, in the case of an application to the Tribunal.
Marginal note:Contents of application
(3) An application made under subsection (2) must
(a) contain a description of the exhibit requested to be lent;
(b) designate a person or class of persons to whom the exhibit is sought to be given;
(c) state the reasons for the request and, if any tests are sought to be performed on the exhibit, contain a description of the tests and a statement of the place where they will be performed;
(d) state the place or places to which the exhibit is sought to be removed; and
(e) specify the time at or before which the exhibit is to be returned.
Marginal note:Making of loan order
30.2 (1) If the court or the Tribunal, as the case may be, is satisfied that the foreign state has requested the loan for a fixed period and has agreed to comply with the terms and conditions that the court or Tribunal proposes to include in any loan order, the court or Tribunal may, after having considered any representations of the persons to whom notice of the application was given in accordance with subsection 30.19(2), make a loan order.
Marginal note:Terms of loan order
(2) A loan order made under subsection (1) must
(a) contain a description of the exhibit;
(b) order the person who has possession of the exhibit to give it to a person designated in the order or who is a member of a class of persons so designated;
(c) contain a description of any tests authorized to be performed on the exhibit, as well as a statement of the place where the tests must be performed;
(d) fix the place or places to which the exhibit may be removed; and
(e) fix the time at or before which the exhibit must be returned.
Marginal note:Terms and conditions
(3) A loan order made under subsection (1) may include any terms or conditions that the court or the Tribunal considers desirable, including those relating to the preservation of the exhibit.
Marginal note:Variation of loan order
30.21 A court or the Tribunal may vary the terms and conditions of any loan order made by it.
Marginal note:Copy of order to custodian
30.22 A copy of a loan order and of an order varying it shall be delivered by the Commissioner to the Minister of Justice and to the person who had possession of the exhibit when the loan order was made.
Marginal note:Presumption of continuity
30.23 The burden of proving that an exhibit lent to a foreign state pursuant to a loan order made under subsection 30.2(1) and returned to Canada is not in the same condition as it was when the loan order was made or that it was tampered with after the loan order was made is on the party who makes that allegation and, in the absence of that proof, the exhibit is deemed to have been continuously in the possession of the court that made the loan order or the Tribunal, as the case may be.
Appeal
Marginal note:Appeal on question of law
30.24 (1) An appeal lies, with leave, on a question of law alone, to the court of appeal, within the meaning of section 2 of the Criminal Code, from an order or decision of a judge or a court in Canada made under this Part, other than an order or decision of the Federal Court — Trial Division or a judge of that Court, if the application for leave to appeal is made to a judge of the court of appeal within fifteen days after the order or decision.
Marginal note:Appeal on question of law
(2) An appeal lies, with leave, on a question of law alone, to the Federal Court of Appeal, from any order or decision of the Federal Court — Trial Division or the Tribunal made under this Part, if the application for leave to appeal is made to a judge of that Court within fifteen days after the order or decision.
Evidence Obtained by Canada from Abroad
Marginal note:Evidence
30.25 The Minister of Justice shall, on receiving evidence sent by a foreign state in response to a request made by Canada under an agreement, send it promptly to the Commissioner.
Marginal note:Foreign records
30.26 (1) In a proceeding in respect of which Parliament has jurisdiction, a record or a copy of a record and any affidavit, certificate or other statement pertaining to the record made by a person who has custody or knowledge of the record, sent to the Minister of Justice by a foreign state in accordance with a Canadian request under an agreement, is not inadmissible in evidence by reason only that a statement contained in it is hearsay or a statement of opinion.
Marginal note:Probative value
(2) For the purpose of determining the probative value of a record or a copy of a record admitted in evidence under Part VII.1 or VIII, the court hearing the matter, or the Tribunal in proceedings before it, may examine the record or copy, receive evidence orally or by affidavit, or by a certificate or other statement pertaining to the record in which a person attests that the certificate or statement is made in conformity with the laws that apply to a foreign state, whether or not the certificate or statement is in the form of an affidavit attested to before an official of the foreign state, including evidence as to the circumstances in which the information contained in the record or copy was written, stored or reproduced, and may draw any reasonable inference from the form or content of the record or copy.
Marginal note:Foreign things
30.27 In a proceeding in respect of which Parliament has jurisdiction, a thing and any affidavit, certificate or other statement pertaining to the thing made by a person in a foreign state as to the identity and possession of the thing from the time it was obtained until its sending to the Commissioner by the Minister of Justice in accordance with a Canadian request under an agreement, are not inadmissible in evidence by reason only that the affidavit, certificate or other statement contains hearsay or a statement of opinion.
Marginal note:Status of certificate
30.28 An affidavit, certificate or other statement mentioned in section 30.26 or 30.27 is, in the absence of evidence to the contrary, proof of the statements contained in it without proof of the signature or official character of the person appearing to have signed it.
General
Marginal note:Confidentiality of foreign requests and evidence
30.29 (1) No person who performs or has performed duties or functions in the administration or enforcement of this Act shall communicate or allow to be communicated to any other person, except for the purposes of the administration or enforcement of this Act,
(a) the contents of a request made to Canada from a foreign state or the fact of the request having been made; or
(b) the contents of any record or thing obtained from a foreign state pursuant to a Canadian request.
Marginal note:Confidentiality of Canadian evidence
(2) No person who performs or has performed duties or functions in the administration or enforcement of this Act shall communicate or allow to be communicated to any other person, except to a Canadian law enforcement agency or for the purposes of the administration or enforcement of this Act, any information obtained under section 30.06 or 30.11.
Marginal note:Exception
(3) This section does not apply in respect of any information that has been made public.
Marginal note:Records or other things already in Commissioner’s possession
30.291 (1) For greater certainty, any evidence requested by a foreign state under an agreement may be obtained for the purposes of giving effect to the request only in accordance with the agreement and the procedure set out in this Part, even in the case of records or other things already in the possession of the Commissioner.
Marginal note:Exception
(2) This section does not apply in respect of any information that has been made public or any information the communication of which was authorized by the person who provided the information.
Marginal note:Preservation of informal arrangements
30.3 Nothing in this Part shall be construed so as to abrogate or derogate from any arrangement or agreement, other than an agreement under this Part, in respect of cooperation between the Commissioner and a foreign authority.
Marginal note:1990, c. 37, s. 29
4. Subsection 32(3) of the French version of the Act is replaced by the following:
Marginal note:Traités
(3) Ces ordonnances ne peuvent être rendues que si elles sont compatibles avec les traités, conventions, arrangements ou engagements concernant des brevets d’invention, des marques de commerce, des droits d’auteur ou des topographies de circuits intégrés conclus avec tout pays étranger et auxquels le Canada est partie.
Marginal note:1999, c. 2, s. 10(1)
5. (1) The portion of paragraph 33(1)(b) of the Act before subparagraph (i) is replaced by the following:
(b) in the case of an offence under section 52.1 or 53, if the offence is committed or continued,
Marginal note:1999, c. 2, s. 10(1)
(2) Subparagraph 33(1)(b)(ii) of the Act is replaced by the following:
(ii) one or more persons are likely to suffer damage from the commission of the offence that will be substantially greater than any damage that persons named in the application are likely to suffer from an injunction issued under this subsection in the event that it is subsequently found that an offence under section 52.1 or 53 has not been committed, was not about to be committed and was not likely to be committed.
Marginal note:1999, c. 2, s. 10(1)
(3) The portion of subsection 33(1.1) of the Act before paragraph (b) is replaced by the following:
Marginal note:Deceptive telemarketing or notice
(1.1) An injunction issued in respect of an offence under section 52.1 or 53 may forbid any person from supplying to another person a product that is or is likely to be used for the commission or continuation of such an offence, where the person being supplied or, in the case of a corporation, any of its officers or directors was previously
(a) convicted of an offence under section 52.1 or 53 or an offence under section 52 in respect of conduct prohibited by section 52.1 or 53; or
6. The Act is amended by adding the following after section 52.1:
Marginal note:Deceptive notice of winning a prize
53. (1) No person shall, for the purpose of promoting, directly or indirectly, any business interest or the supply or use of a product, send or cause to be sent by electronic or regular mail or by any other means a document or notice in any form, if the document or notice gives the general impression that the recipient has won, will win, or will on doing a particular act win, a prize or other benefit, and if the recipient is asked or given the option to pay money, incur a cost or do anything that will incur a cost.
Marginal note:Non-application
(2) Subsection (1) does not apply if the recipient actually wins the prize or other benefit and the person who sends or causes the notice or document to be sent
(a) makes adequate and fair disclosure of the number and approximate value of the prizes or benefits, of the area or areas to which they have been allocated and of any fact within the person’s knowledge that materially affects the chances of winning;
(b) distributes the prizes or benefits without unreasonable delay; and
(c) selects participants or distributes the prizes or benefits randomly, or on the basis of the participants’ skill, in any area to which the prizes or benefits have been allocated.
Marginal note:Due diligence
(3) No person shall be convicted of an offence under this section who establishes that the person exercised due diligence to prevent the commission of the offence.
Marginal note:Offences by employees or agents
(4) In the prosecution of a corporation for an offence under this section, it is sufficient proof of the offence to establish that it was committed by an employee or agent of the corporation, whether or not the employee or agent is identified, unless the corporation establishes that the corporation exercised due diligence to prevent the commission of the offence.
Marginal note:Liability of officers and directors
(5) Where a corporation commits an offence under this section, any officer or director of the corporation who is in a position to direct or influence the policies of the corporation in respect of conduct prohibited by this section is a party to and guilty of the offence and is liable to the punishment provided for the offence, whether or not the corporation has been prosecuted or convicted, unless the officer or director establishes that the officer or director exercised due diligence to prevent the commission of the offence.
Marginal note:Offence and punishment
(6) Any person who contravenes this section is guilty of an offence and liable
(a) on conviction on indictment, to a fine in the discretion of the court or to imprisonment for a term not exceeding five years, or to both; or
(b) on summary conviction, to a fine not exceeding $200,000 or to imprisonment for a term not exceeding one year, or to both.
Marginal note:Sentencing
(7) In sentencing a person convicted of an offence under this section, the court shall consider, among other factors, the following aggravating factors:
(a) the use of lists of persons previously deceived by the commission of an offence under section 52.1 or this section;
(b) the particular vulnerability of recipients of the notices or documents referred to in subsection (1) to abusive tactics;
(c) the amount of the proceeds realized by the person from the commission of an offence under this section;
(d) previous convictions of the person under section 52 or 52.1 or this section; and
(e) the manner in which information is conveyed, including the use of abusive tactics.
7. The Act is amended by adding the following after section 65:
Marginal note:Contravention of subsection 30.06(5)
65.1 (1) Every person who, without good and sufficient cause, the proof of which lies on that person, contravenes subsection 30.06(5) is guilty of an offence and liable on summary conviction or on conviction on indictment to a fine not exceeding $5,000 or to imprisonment for a term not exceeding two years, or to both.
Marginal note:Destruction or alteration of records or things
(2) Every person who destroys or alters, or causes to be destroyed or altered, any record or thing in respect of which a search warrant is issued under section 30.06 or that is required to be produced pursuant to an order made under subsection 30.11(1) or 30.16(1) is guilty of an offence and liable
(a) on conviction on indictment to a fine not exceeding $50,000 or to imprisonment for a term not exceeding five years, or to both; or
(b) on summary conviction to a fine not exceeding $25,000 or to imprisonment for a term not exceeding two years, or to both.
Marginal note:Refusal after objection overruled
65.2 (1) Every person who, without good and sufficient cause, the proof of which lies on that person, refuses to answer a question or to produce a record or thing to the person designated under paragraph 30.11(2)(c) after a judge has ruled against the objection under paragraph 30.11(8)(a), is guilty of an offence and liable on conviction on indictment or on summary conviction to a fine not exceeding $5,000 or to imprisonment for a term not exceeding two years, or to both.
Marginal note:Refusal where no ruling made on objection
(2) Every person is guilty of an offence and liable on summary conviction or on conviction on indictment to a fine not exceeding $5,000 or to imprisonment for a term not exceeding two years, or to both, who, without good and sufficient cause, the proof of which lies on that person, refuses to answer a question or to produce a record or thing to the person designated under paragraph 30.11(2)(c), where no ruling has been made under paragraph 30.11(8)(a),
(a) without giving the detailed statement required by subsection 30.11(9); or
(b) if the person was previously asked the same question or requested to produce the same record or thing and refused to do so and the reasons on which that person based the previous refusal were determined not to be well-founded by
(i) a judge, if the reasons were based on the Canadian law of non-disclosure of information or privilege, or
(ii) a court of the foreign state or by a person designated by the foreign state, if the reasons were based on a law that applies to the foreign state.
Marginal note:1999, c. 2, s. 21
8. Subsection 73(1) of the Act is replaced by the following:
Marginal note: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 51 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 — Trial Division, and for the purposes of the prosecution or other proceedings, the Federal Court — Trial Division has all the powers and jurisdiction of a superior court of criminal jurisdiction under the Criminal Code and under this Act.
Marginal note:1999, c. 2, s. 22
9. Subsection 74.07(2) of the Act is replaced by the following:
Marginal note:Non-application
(2) Sections 74.01 to 74.06 do not apply in respect of conduct prohibited by sections 52.1, 53, 55 and 55.1.
Marginal note:1999, c. 2, s. 22
10. (1) Subsection 74.11(2) of the Act is replaced by the following:
Marginal note:Duration
(2) Subject to subsection (5), the order has effect, or may be extended on application by the Commissioner, for such period as the court considers necessary and sufficient to meet the circumstances of the case.
Marginal note:1999, c. 2, s. 22
(2) Subsection 74.11(5) of the Act is replaced by the following:
Marginal note:Duration of ex parte order
(5) An order issued ex parte shall have effect for such period as is specified in it, not exceeding seven days unless, on further application made on notice as provided in subsection (3), the court extends the order for such additional period as it considers necessary and sufficient.
Marginal note:Duty of Commissioner
(6) Where an order 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 order was issued.
Marginal note:1999, c. 2, s. 22
11. Sections 74.12 and 74.13 of the Act are replaced by the following:
Marginal note:Consent agreement
74.12 (1) The Commissioner and a person in respect of whom the Commissioner has applied or may apply for an order under this Part may sign a consent agreement.
Marginal note:Terms of consent agreement
(2) The consent agreement shall be based on terms that could be the subject of an order of a court against that person, and may include other terms, whether or not they could be imposed by the court.
Marginal note:Registration
(3) The consent agreement may be filed with the court for immediate registration.
Marginal note:Effect of registration
(4) Upon registration of the consent agreement, the proceedings, if any, are terminated and the consent agreement has the same force and effect, and proceedings may be taken, as if it were an order of the court.
Marginal note:Rescission or variation of consent agreement or order
74.13 The court may rescind or vary a consent agreement that it has registered or an order that it has made under this Part, on application by the Commissioner or the person who consented to the agreement, or the person against whom the order was made, if the court finds that
(a) the circumstances that led to the making of the agreement or order have changed and, in the circumstances that exist at the time the application is made, the agreement or order would not have been made or would have been ineffective in achieving its intended purpose; or
(b) the Commissioner and the person who consented to the agreement have consented to an alternative agreement or the Commissioner and the person against whom the order was made have consented to an alternative order.
Marginal note:R.S., c. 19 (2nd Supp.), s. 45; 1999, c. 2, par. 37(w)
11.1 (1) The portion of subsection 75(1) of the Act before paragraph (a) is replaced by the following:
Marginal note:Jurisdiction of Tribunal where refusal to deal
75. (1) Where, on application by the Commissioner or a person granted leave under section 103.1, the Tribunal finds that
(2) Subsection 75(1) of the Act is amended by striking out the word “and” at the end of paragraph (c), by adding the word “and” at the end of paragraph (d) and by adding the following after paragraph (d):
(e) the refusal to deal is having or is likely to have an adverse effect on competition in a market,
(3) Section 75 of the Act is amended by adding the following after subsection (3):
Marginal note:Inferences
(4) In considering an application by a person granted leave under section 103.1, the Tribunal may not draw any inference from the fact that the Commissioner has or has not taken any action in respect of the matter raised by the application.
Marginal note:R.S., c. 19, (2nd Supp.), s. 45; 1999, c. 2, par. 37(y)
11.2 (1) The portion of subsection 77(2) of the Act before paragraph (a) is replaced by the following:
Marginal note:Exclusive dealing and tied selling
(2) Where, on application by the Commissioner or a person granted leave under section 103.1, 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
Marginal note:R.S., c. 19, (2nd Supp.), s. 45; 1999, c. 2, par. 37(y)
(2) Subsection 77(3) of the Act is replaced by the following:
Marginal note:Market restriction
(3) Where, on application by the Commissioner or a person granted leave under section 103.1, 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.
(3) Section 77 of the Act is amended by adding the following after subsection (6):
Marginal note:Inferences
(7) In considering an application by a person granted leave under section 103.1, the Tribunal may not draw any inference from the fact that the Commissioner has or has not taken any action in respect of the matter raised by the application.
11.3 Section 77 of the Act is amended by adding the following after subsection (3):
Marginal note:Damage awards
(3.1) For greater certainty, the Tribunal may not make an award of damages under this section to a person granted leave under subsection 103.1(7).
11.4 Section 79 of the Act is amended by adding the following after subsection (3):
Marginal note:Administrative monetary penalty
(3.1) Where the Tribunal makes an order under subsection (1) or (2) against an entity who operates a domestic service, as defined in subsection 55(1) of the Canada Transportation Act, it may also order the entity to pay, in such manner as the Tribunal may specify, an administrative monetary penalty in an amount not greater than $15 million.
Marginal note: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) the vulnerability of the class of persons adversely affected by the practice;
(c) injury to competition in the relevant market;
(d) the history of compliance with this Act by the entity; and
(e) any other relevant factor.
Marginal note:Purpose of order
(3.3) The purpose of an order under subsection (3.1) is to promote practices that are in conformity with this section, not to punish.
11.5 The Act is amended by adding the following after section 79:
Marginal note:Unpaid monetary penalty
79.1 The amount of an administrative monetary penalty imposed on an entity under subsection 79(3.1) is a debt due to Her Majesty in right of Canada and may be recovered as such from that entity in a court of competent jurisdiction.
12. The Act is amended by adding the following before section 104:
Marginal note:Leave to make application under section 75 or 77
103.1 (1) Any person may apply to the Tribunal for leave to make an application under section 75 or 77. The application for leave must be accompanied by an affidavit setting out the facts in support of the person’s application under section 75 or 77.
Marginal note:Notice
(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 or 77 is sought.
Marginal note:Certification by Commissioner
(3) The Commissioner shall, within 48 hours after receiving a copy of an application for leave, certify to the Tribunal whether or not the matter in respect of which leave is sought
(a) is the subject of an inquiry by the Commissioner; or
(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 or 77 is sought.
Marginal note:Application discontinued
(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 or 77.
Marginal note:Notice by Tribunal
(5) The Tribunal shall as soon as practicable after receiving the Commissioner’s certification under subsection (3) notify the applicant and any person against whom the order is sought as to whether it can hear the application for leave.
Marginal note:Representations
(6) A person served with an application for leave may, within 15 days after receiving notice under subsection (5), make representations in writing to the Tribunal and shall serve a copy of the representations on any other person referred to in subsection (2).
Marginal note:Granting leave to make application under section 75 or 77
(7) The Tribunal may grant leave to make an application under section 75 or 77 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.
Marginal note:Time and conditions for making application
(8) The Tribunal may set the time within which and the conditions subject to which an application under section 75 or 77 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.
Marginal note:Decision
(9) The Tribunal must give written reasons for its decision to grant or refuse leave and send copies to the applicant, the Commissioner and any other person referred to in subsection (2).
Marginal note:Limitation
(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 or 77.
Marginal note:Inferences
(11) In considering an application for leave, the Tribunal may not draw any inference from the fact that the Commissioner has or has not taken any action in respect of the matter raised by it.
Marginal note:Inquiry by Commissioner
(12) If the Commissioner has certified under subsection (3) that a matter in respect of which leave was sought by a person is under inquiry and the Commissioner subsequently discontinues the inquiry other than by way of settlement, the Commissioner shall, as soon as practicable, notify that person that the inquiry is discontinued.
Marginal note:Intervention by Commissioner
103.2 If a person granted leave under subsection 103.1(7) makes an application under section 75 or 77, the Commissioner may intervene in the proceedings.
Marginal note:Interim order
103.3 (1) Subject to subsection (2), the Tribunal may, on ex parte application by the Commissioner in which the Commissioner certifies that an inquiry is being made under paragraph 10(1)(b), issue an interim order
(a) to prevent the continuation of conduct that could be the subject of an order under any of sections 75 to 77, 79, 81 or 84; or
(b) to prevent the taking of measures under section 82 or 83.
Marginal note:Limitation
(2) The Tribunal may make the interim order if it finds that the conduct or measures could be of the type described in paragraph (1)(a) or (b) and that, in the absence of an interim order,
(a) injury to competition that cannot adequately be remedied by the Tribunal is likely to occur;
(b) a person is likely to be eliminated as a competitor; or
(c) a person is likely to suffer a significant loss of market share, a significant loss of revenue or other harm that cannot be adequately remedied by the Tribunal.
Marginal note:Consultation
(3) Before making an application for an order to prevent the continuation of conduct that could be the subject of an order under any of sections 75 to 77, 79, 81 or 84 by an entity incorporated under the Bank Act, the Insurance Companies Act, the Trust and Loan Companies Act or the Cooperative Credit Associations Act or a subsidiary of such an entity, the Commissioner must consult with the Minister of Finance respecting the safety and soundness of the entity.
Marginal note:Duration
(4) Subject to subsections (5) and (6), an interim order has effect for 10 days, beginning on the day on which it is made.
Marginal note:Extension or revocation of order
(5) The Tribunal may, on application by the Commissioner on 48 hours notice to each person against whom the interim order is directed,
(a) extend the interim order once or twice for additional periods of 35 days each; or
(b) rescind the order.
Marginal note:Application to Tribunal for extension
(5.1) The Commissioner may, before the expiry of the second 35-day period referred to in subsection (5) or of the period fixed by the Tribunal under subsection (7), as the case may be, apply to the Tribunal for a further extension of the interim order.
Marginal note:Notice of application by Commissioner
(5.2) The Commissioner shall give at least 48 hours notice of an application referred to in subsection (5.1) to the person against whom the interim order is made.
Marginal note:Extension of interim order
(5.3) The Tribunal may order that the effective period of the interim order be extended if
(a) the Commissioner establishes that information requested for the purpose of the inquiry has not yet been provided or that more time is needed in order to review the information;
(b) the information was requested during the initial period that the interim order had effect, within the first 35 days after an order extending the interim order under subsection (5) had effect, or within the first 35 days after an order extending the interim order made under subsection (7) had effect, as the case may be, and
(i) the provision of such information is the subject of a written undertaking, or
(ii) the information was ordered to be provided under section 11; and
(c) the information is reasonably required to determine whether grounds exist for the Commissioner to make an application under any section referred to in paragraph (1)(a) or (b).
Marginal note:Terms
(5.4) An order extending an interim order issued under subsection (5.3) shall have effect for such period as the Tribunal considers necessary to give the Commissioner a reasonable opportunity to receive and review the information referred to in that subsection.
Marginal note:Effect of application
(5.5) If an application is made under subsection (5.1), the interim order has effect until the Tribunal makes a decision whether to grant an extension under subsection (5.3).
Marginal note:When application made to Tribunal
(6) If an application is made under subsection (7), an interim order has effect until the Tribunal makes an order under that subsection.
Marginal note:Confirming or setting aside interim order
(7) A person against whom the Tribunal has made an interim order may apply to the Tribunal in the first 10 days during which the order has effect to have it varied or set aside and the Tribunal shall
(a) if it is satisfied that one or more of the situations set out in paragraphs (2)(a) to (c) existed or are likely to exist, make an order confirming the interim order, with or without variation as the Tribunal considers necessary and sufficient to meet the circumstances, and fix the effective period of that order for a maximum of 70 days, beginning on the day on which the order confirming the interim order is made; and
(b) if it is not satisfied that any of the situations set out in paragraphs (2)(a) to (c) existed or is likely to exist, make an order setting aside the interim order.
Marginal note:Notice
(8) A person who makes an application under subsection (7) shall give the Commissioner 48 hours written notice of the application.
Marginal note:Representations
(9) At the hearing of an application under subsection (7), the Tribunal shall provide the applicant, the Commissioner and any person directly affected by the interim order with a full opportunity to present evidence and make representations before the Tribunal makes an order under that subsection.
Marginal note:Prohibition of extraordinary relief
(10) Notwithstanding section 13 of the Competition Tribunal Act, an interim order shall not be appealed or reviewed in any court except as provided for by subsection (7).
Marginal note:Duty of Commissioner
(11) When an interim order is in effect, the Commissioner shall proceed as expeditiously as possible to complete the inquiry arising out of the conduct in respect of which the order was made.
Marginal note:R.S., c. 19 (2nd Supp.), s. 45; 1999, c. 2, par. 37(z.12)
13. (1) Subsection 104(1) of the Act is replaced by the following:
Marginal note:Interim order
104. (1) Where an application has been made for an order under this Part, other than an interim order under section 100 or 103.3, the Tribunal, on application by the Commissioner or a person who has made an application 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.
Marginal note:R.S., c. 19 (2nd Supp.), s. 45; 1999, c. 2, par. 37 (z.12)
(2) Subsection 104(3) of the Act is replaced by the following:
Marginal note:Duty of Commissioner
(3) Where an interim order issued under subsection (1) on application by the Commissioner is in effect, the Commissioner shall proceed as expeditiously as possible to complete proceedings under this Part arising out of the conduct in respect of which the order was issued.
13.1 Section 104.1 of the Act is amended by adding the following after subsection (5):
Marginal note:Application to Tribunal for extension
(5.1) The Commissioner may, before the expiry of the second 30-day period referred to in subsection (5) or of the period fixed by the Tribunal under subsection (7), as the case may be, apply to the Tribunal for a further extension of the temporary order.
Marginal note:Notice of application by Commissioner
(5.2) The Commissioner shall give at least 48 hours notice of an application referred to in subsection (5.1) to the person against whom the temporary order is made.
Marginal note:Extension of temporary order
(5.3) The Tribunal may order that the effective period of the temporary order be extended if
(a) the Commissioner establishes that information requested for the purpose of the inquiry has not yet been provided or that more time is needed in order to review the information;
(b) the information was requested within the initial period that the temporary order had effect, within the first 30 days after an order extending the temporary order under subsection (5) had effect, or within the first 30 days after an order extending the temporary order made under subsection (7) had effect, as the case may be, and
(i) the provision of such information is the subject of a written undertaking, or
(ii) the information was ordered to be provided under section 11; and
(c) the information is reasonably required to determine whether grounds exist for the Commissioner to make an application under section 79.
Marginal note:Terms
(5.4) An order extending a temporary order issued under subsection (5.3) shall have effect for such period as the Tribunal considers necessary to give the Commissioner a reasonable opportunity to receive and review the information referred to in that subsection.
Marginal note:Effect of application
(5.5) If an application is made under subsection (5.1), the temporary order has effect until the Tribunal makes a decision whether to grant an extension under subsection (5.3).
Marginal note:R.S., c. 19, (2nd Supp.), s. 45; 1999, c. 2, par. 37(z.13)
14. Sections 105 and 106 of the Act are replaced by the following:
Marginal note: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 or a temporary order under section 104.1, may sign a consent agreement.
Marginal note:Terms of consent agreement
(2) The consent agreement shall be based on terms that could be the subject of an order of the Tribunal against that person.
Marginal note:Registration
(3) The consent agreement may be filed with the Tribunal for immediate registration.
Marginal note:Effect of registration
(4) Upon registration of the consent agreement, the proceedings, if any, are terminated, and the consent agreement has the same force and effect, and proceedings may be taken, as if it were an order of the Tribunal.
Marginal note: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 104.1 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
(a) the circumstances that led to the making of the agreement or order have changed and, in the circumstances that exist at the time the application is made, the agreement or order would not have been made or would have been ineffective in achieving its intended purpose; or
(b) the Commissioner and the person who consented to the agreement have consented to an alternative agreement or the Commissioner and the person against whom the order was made have consented to an alternative order.
Marginal note:Directly affected persons
(2) A person directly affected by a consent agreement, other than a party to that agreement, may apply to the Tribunal within 60 days after the registration of the agreement to have one or more of its terms rescinded or varied. The Tribunal may grant the application if it finds that the person has established that the terms could not be the subject of an order of the Tribunal.
Marginal note:Consent agreement — parties to a private action
106.1 (1) If a person granted leave under section 103.1 makes an application to the Tribunal for an order under section 75 or 77 and the terms of the order are agreed to by the person in respect of whom the order is sought and consistent with the provisions of this Act, a consent agreement may be filed with the Tribunal for registration.
Marginal note:Notice to Commissioner
(2) On filing the consent agreement with the Tribunal for registration, the parties shall serve a copy of it on the Commissioner without delay.
Marginal note:Publication
(3) The consent agreement shall be published without delay in the Canada Gazette.
Marginal note:Registration
(4) The consent agreement shall be registered 30 days after its publication unless a third party makes an application to the Tribunal before then to cancel the agreement or replace it with an order of the Tribunal.
Marginal note:Effect of registration
(5) Upon registration, the consent agreement has the same force and effect, and proceedings may be taken, as if it were an order of the Tribunal.
Marginal note:Commissioner may intervene
(6) On application by the Commissioner, the Tribunal may vary or rescind a registered consent agreement if it finds that the agreement has or is likely to have anti-competitive effects.
Marginal note:Notice
(7) The Commissioner must give notice of an application under subsection (6) to the parties to the consent agreement.
Marginal note:R.S., c. 19 (2nd Supp.), s. 45
15. The headings before section 125 of the Act are replaced by the following:
PART X GENERAL
Commissioner’s Opinions
Marginal note:Application for written opinion
124.1 (1) Any person may apply to the Commissioner, with supporting information, for an opinion on the applicability of any provision of this Act or the regulations to conduct or a practice that the applicant proposes to engage in, and the Commissioner may provide a written opinion for the applicant’s guidance.
Marginal note:Opinion binding
(2) If all the material facts have been submitted by or on behalf of an applicant for an opinion and they are accurate, a written opinion provided under this section is binding on the Commissioner. It remains binding for so long as the material facts on which the opinion was based remain substantially unchanged and the conduct or practice is carried out substantially as proposed.
References to Tribunal
Marginal note:Reference if parties agree
124.2 (1) The Commissioner and a person who is the subject of an inquiry under section 10 may by agreement refer to the Tribunal for determination any question of law, mixed law and fact, jurisdiction, practice or procedure, in relation to the application or interpretation of Part VII.1 or VIII, whether or not an application has been made under Part VII.1 or VIII.
Marginal note:Reference by Commissioner
(2) The Commissioner may, at any time, refer to the Tribunal for determination a question of law, jurisdiction, practice or procedure, in relation to the application or interpretation of Parts VII.1 to IX.
Marginal note:Reference by agreement of parties to a private action
(3) A person granted leave under section 103.1 and the person against whom an order is sought under section 75 or 77 may by agreement refer to the Tribunal for determination any question of law, or mixed law and fact, in relation to the application or interpretation of Part VIII, if the Tribunal grants them leave. They must send a notice of their application for leave to the Commissioner, who may intervene in the proceedings.
Marginal note:Reference procedure
(4) The Tribunal shall decide the questions referred to it informally and expeditiously, in accordance with any rules on references made under section 16 of the Competition Tribunal Act.
Representations to Boards, Commissions or Other Tribunals
R.S., c. 19, (2nd Supp.), Part I COMPETITION TRIBUNAL ACT
16. Paragraph 3(2)(a) of the Competition Tribunal Act is replaced by the following:
(a) not more than six members to be appointed from among the judges of the Federal Court — Trial Division by the Governor in Council on the recommendation of the Minister of Justice; and
Marginal note:1999, c. 2, s. 41
16.1 Subsection 8(1) of the Act is replaced by the following:
Marginal note:Jurisdiction
8. (1) The Tribunal has jurisdiction to hear and dispose of all applications made under Part VII.1 or VIII of the Competition Act and any related matters, as well as any matter under Part IX of that Act that is the subject of a reference under subsection 124.2(2) of that Act.
17. The Act is amended by adding the following after section 8:
Marginal note:Costs
8.1 (1) The Tribunal may award costs of proceedings before it in respect of reviewable matters under Parts VII.1 and VIII of the Competition Act on a final or interim basis, in accordance with the provisions governing costs in the Federal Court Rules, 1998.
Marginal note:Payment
(2) The Tribunal may direct by whom and to whom any costs are to be paid and by whom they are to be taxed and allowed.
Marginal note:Award against the Crown
(3) The Tribunal may award costs against Her Majesty in right of Canada.
Marginal note:Costs adjudged to Her Majesty in right of Canada
(4) Costs adjudged to Her Majesty in right of Canada shall not be disallowed or reduced on taxation by reason only that counsel who earned the costs, or in respect of whose services the costs are charged, was a salaried officer of Her Majesty in right of Canada performing those services in the discharge of that counsel’s duty and remunerated for those services by salary, or for that or any other reason was not entitled to recover any costs from Her Majesty in right of Canada in respect of the services so rendered.
Marginal note:Amounts to Receiver General
(5) Any money or costs awarded to Her Majesty in right of Canada in a proceeding in respect of which this section applies shall be paid to the Receiver General.
18. Section 9 of the Act is amended by adding the following after subsection (3):
Marginal note:Summary dispositions
(4) On a motion from a party to an application made under Part VII.1 or VIII of the Competition Act, a judicial member may hear and determine the application in a summary way, in accordance with any rules on summary dispositions.
Marginal note:Decision
(5) The judicial member may dismiss the application in whole or in part if the member finds that there is no genuine basis for it. The member may allow the application in whole or in part if satisfied that there is no genuine basis for the response to it.
Marginal note:2000, c. 15. s. 16
19. Subsection 11(1) of the Act is replaced by the following:
Marginal note: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 subsection 4.1(2) or (4) or 100(1), section 103.1 or 103.3 or subsection 104(1) or 104.1(7) of the Competition Act and any related matters.
COMING INTO FORCE
Marginal note:Coming into force
20. The provisions of this Act, and the provisions of any Act as enacted by this Act, come into force on a day or days to be fixed by order of the Governor in Council.
