Canada: Commissioner Of Competition Resigns

Melanie Aitken's term notable for stepped-up enforcement in all areas of the Competition Act


The head of Canada's Competition Bureau announced on June 28, 2012, that she will resign her post in September 2012 – almost two years before the end of her five-year term. Since her appointment as interim commissioner in January 2009, Melanie Aitken has overseen a whirlwind of activity at the bureau, from the introduction of wide-ranging amendments to the Competition Act to a highly visible enforcement programme. The commissioner initiated judicial challenges in all main areas of the act, including mergers, abuse of dominance, price fixing, price maintenance and misleading advertising.

As most of the enforcement actions she commenced have not yet been decided, it may be premature to speculate about her legacy, but it is clear that by reinvigorating competition law enforcement, Aitken raised awareness of the Competition Act in Canada's business community and the benefits of competitive markets for Canadians.

Major enforcement actions

Early in her term, Aitken indicated she would not shy away from bringing enforcement actions when she believed they were warranted. Actively enforcing the law would, according to Aitken, lead to developments in the jurisprudence, which in turn would provide clarity and transparency to Canadians about what constitutes acceptable and unacceptable conduct. Active enforcement would also serve to deter anti-competitive conduct. This commitment to active enforcement was tempered by a recognition that settling disputes and avoiding litigation is in the public interest and settlements would be reached when appropriate.

Many of the cases initiated by the commissioner remain before the courts. Major contested cases brought during Aitken's term include the following:


  • The Commissioner of Competition v CCS Corporation et al. – successful challenge, as a substantial prevention of competition, of the acquisition of a potential entrant by the incumbent provider of secure landfill services for solid hazardous waste from oil and gas producers. The Competition Tribunal's May 29, 2012, decision has been appealed to the Federal Court of Appeal.
  • The Commissioner of Competition v Air Canada et al. – ongoing challenge to the transborder joint venture and various marketing cooperation and alliance agreements between Air Canada, Canada's legacy carrier, and United Continental Holdings, Inc. and its predecessors under both the merger provisions and the civil agreement between competitors provision of the act. This will be the first case to interpret the civil agreement between competitors provision, which was added to the act in 2009, but which only took effect in 2010. The case is scheduled to be heard by the Competition Tribunal in November 2012.

Abuse of dominance

  • The Commissioner of Competition v The Canadian Real Estate Association – challenge to the rules governing access to the online database owned by the Canadian Real Estate Association and operated by its members featuring homes for sale across Canada. The commissioner alleged the rules excluded competition from brokers and others wishing to offer a reduced set of services to customers. Although the association offered to modify its rules following the filing of the application, the commissioner was not satisfied with the proposed rule changes, as they did not prevent the association from making future rule changes that would undercut the proposed changes. The parties settled approximately eight months after the case was filed.
  • The Commissioner of Competition v The Toronto Real Estate Board– ongoing challenge to the restrictions imposed by the largest real estate board in Canada on how member agents can provide information from the Toronto multiple listing service system to their customers. The commissioner alleges the rules deny member agents the ability to provide innovative brokerage services over the Internet. The case will be heard by the tribunal in September 2012.

Price fixing and bid rigging

Although no contested cases were brought under Canada's conspiracy provision during Aitken's term, the commissioner has secured a number of guilty pleas in international and domestic conspiracy cases. With respect to domestic cases:

  • seven companies and 27 individuals have now pleaded guilty in the bureau's long-running investigation of price fixing in the retail gasoline industry in Quebec, and several companies also recently pleaded guilty in respect of price fixing at retail gasoline stations in Eastern Ontario; and
  • in January 2012 the commissioner secured guilty pleas and a C$12.5 million fine from Domfoam International and Valle Foam Industries under the per se conspiracy provisions that became law in March 2010.

Bid-rigging charges have been laid against firms and individuals in numerous industries – most commonly those related to construction – since 2009. Among the largest group of charges were those laid against 14 individuals and seven companies in February 2009 in respect of the alleged rigging of bids for government contracts. Two individuals subsequently pleaded guilty, but trials are ongoing in respect of the other parties. This case also gave rise to a defamation suit against the commissioner by one of the accused for statements made by the bureau in its announcement of the charges. That case is ongoing.

Price maintenance

The Commissioner of Competition v Visa Canada Corporation and MasterCard International Incorporated – ongoing challenge to the allegedly restrictive and anti-competitive rules that Visa and MasterCard impose on merchants that accept their credit cards. The commissioner alleges these rules effectively eliminated competition between Visa and MasterCard for merchants' acceptance of their credit cards, resulting in increased costs to businesses and, ultimately, consumers. The matter was heard by the tribunal in May and June 2012.

Misleading advertising

  • The Commissioner of Competition v Chatr Wireless Inc. – ongoing challenge to stop Rogers Communications' Canada-wide advertising campaign for its Chatr wireless service, which claimed that consumers subscribing to Chatr would experience "fewer dropped calls than new wireless carriers" and have "no worries about dropped calls." Based on the bureau's analysis of technical data, it believes there to be no discernible difference in dropped call rates between Rogers/Chatr and new entrants. The commissioner is seeking the maximum administrative monetary penalty of C$10 million. Rogers is challenging the constitutional validity not just of the penalty, but also of the misleading advertising provisions themselves. Hearings took place in June 2012 and the case continues in Ontario's Superior Court.
  • The Commissioner of Competition v Bell Canada, Bell Mobility Inc. and Bell ExpressVu Limited Partnership – the commissioner reached a consent agreement with Bell – Canada's largest incumbent telecommunications provider offering home telephone, wireless, Internet and digital television services – under which Bell agreed to cease making what the bureau had concluded were misleading representations about the prices offered for its services and pay an administrative monetary penalty of C$10 million, the maximum amount allowed under the misleading advertising provisions of the act. Although this is not a contested case, it is noteworthy as the first case in which the commissioner secured the new maximum C$10 million penalty. The commissioner subsequently touted this case as a victory against fine-print disclaimers and pursued parties in other industries that used similar disclaimers.
  • The Commissioner of Competition v Beiersdorf Canada Inc. – the commissioner reached a settlement with the Canadian distributor of Nivea skin care products to stop making what the bureau had concluded were false or misleading claims about one Nivea product. Beiersdorf was required to:
    • remove the products from Canadian shelves immediately;
    • post corrective statements on the Nivea website and in Canadian newspapers; and
    • pay an administrative monetary penalty of C$300,000, plus C$80,000 in costs to the bureau.

Beiersdorf also agreed to refund the purchase price and shipping costs to its Canadian customers. At first instance, this was a routine consumer protection case, but it became noteworthy due to Beiersdorf's subsequent statements to the media in a news release and on the Nivea website that, "Performance claims and testing related to Nivea 'My Silhouette' are supported by independent research, which has always complied with Canadian requirements and guidelines." The commissioner acted swiftly in alleging Beiersdorf had breached the terms of its consent agreement and, as a consequence, those statements were withdrawn.


All of the contested cases commenced by Aitken remain before the courts. In her first speech as interim commissioner, she noted the importance of bringing "responsible" cases to the tribunal and the courts, and that the bureau ought not "be paralyzed by the fear of losing." It is clear that her latter admonition was followed; time will tell whether the tribunal and the courts will vindicate her view that she brought "responsible" cases.

Norton Rose Group is a leading international legal practice. We offer a full business law service to many of the world's pre-eminent financial institutions and corporations from offices in Europe, Asia, Australia, Canada, Africa, the Middle East, Latin America and Central Asia.

Knowing how our clients' businesses work and understanding what drives their industries is fundamental to us. Our lawyers share industry knowledge and sector expertise across borders, enabling us to support our clients anywhere in the world. We are strong in financial institutions; energy; infrastructure, mining and commodities; transport; technology and innovation; and pharmaceuticals and life sciences.

We have more than 2900 lawyers operating from 43 offices in Abu Dhabi, Almaty, Amsterdam, Athens, Bahrain, Bangkok, Beijing, Bogotá, Brisbane, Brussels, Calgary, Canberra, Cape Town, Caracas, Casablanca, Dubai, Durban, Frankfurt, Hamburg, Hong Kong, Johannesburg, London, Melbourne, Milan, Montréal, Moscow, Munich, Ottawa, Paris, Perth, Piraeus, Prague, Québec, Rome, Shanghai, Singapore, Sydney, Tokyo, Toronto and Warsaw; and from associate offices in Dar es Salaam, Ho Chi Minh City and Jakarta.

Norton Rose Group comprises Norton Rose LLP, Norton Rose Australia, Norton Rose Canada LLP, Norton Rose South Africa (incorporated as Deneys Reitz Inc), and their respective affiliates.

On January 1, 2012, Macleod Dixon joined Norton Rose Group adding strength and depth in Canada, Latin America and around the world. For more information please visit

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions