Recent remarks by Canada's Interim Commissioner, John
Pecman, reinforce the view that the Bureau is pursuing all avenues
available to it under the Competition Act to fulfill its
mandate of investigating and challenging civil and/or criminal
anti-competitive practices. In this respect, the interim
Commissioner noted three of the Bureau's priorities going
focused enforcement and strategic regulatory interventions
designed to benefit Canadians;
applying Canada's competition laws in a transparent and
predictable manner; and
developing trust through enhanced collaboration
In addition to these priorities, Mr. Pecman noted that the
Bureau would assist in providing clarification on the Act's
price maintenance provisions, issues that have arisen in the
context of electronic document production, the Bureau's
leniency program for those that cooperate in criminal
investigations, and investigative procedures.
The Use of Section 11 Investigative
In his speech, Mr. Pecman emphasized that the Bureau will use
"all of the tools that Parliament has given to us in the
Competition Act to deliver on our mandate". In
terms of investigations under formal inquiry, including non-merger,
civil matters, the Commissioner indicated that the Bureau will not
refrain from using the powers available to it through
section 11 of the Act. This provision allows the
Commissioner to compel attendance of a person who has, or is likely
to have, information that is relevant to an inquiry, so that they
may be examined on oath or solemn affirmation, or to compel
production of records or a written return.
While the Bureau has the power to utilize section 11 in respect
of both civil and criminal matters under inquiry the Commissioner
noted that in some recent investigations it has opted to use
Voluntary Information Requests (VIRs) in place of court orders.
However, Mr. Pecman expressed concern that parties may be using the
VIR process for strategic, uncooperative purposes, resulting in
unnecessary delays in the Bureau's investigations. In order to
combat what the Bureau views as "inefficient, incomplete and
untimely" responses associated with VIRs, Commissioner Pecman
declared that, "going forward, the Bureau's first course
of action in obtaining information from the target of a formal
inquiry in non-merger cases will be, for all but exceptional cases,
obtaining a legally binding section 11 order from the
The Commissioner clarified that the use of section 11 orders is
not meant to be punitive, but rather is designed to aid
investigations by providing a clear framework, timelines and set of
rules that benefit both parties in the investigation.
In addition to commenting on section 11 orders, the Commissioner
expressed a commitment to transparency designed to provide the
legal community, consumers and businesses with greater certainty in
their dealings with the Bureau. Practically speaking, this means
continued publication of guidance material, and, in respect of
merger review, position statements for complex deals. Such
statements will continue to be published where there is a high
level of complexity and importance of the issues raised, a strong
interest in the case, or where the review utilized new analytical
tools, findings or outcomes. The online mergers register, which lists completed
merger reviews updated on a monthly basis, will see its first year
of operation this February.
Recent Enforcement Measures
The Commissioner commented on some of the Bureau's recent
enforcement measures, stating that he was particularly proud of the
investigation into the retail gas sector in Quebec, which was one
of the largest in the agency's history. The investigation
resulted in criminal price-fixing charges being laid against 39
individuals and 15 companies, with total fines exceeding CDN $3
million and terms of imprisonment totaling 54 months. The
Commissioner also stated that he expects a decision from the
Competition Tribunal soon on the civil case alleging anti-competitive price maintenance
practices by Visa and Mastercard.
In terms of non-legislative enforcement measures, Commissioner
Pecman highlighted the Bureau's collaboration with its law
enforcement partners in Quebec, specifically the Unité
Permanente Anticorruption or UPAC. Collaboration between the Bureau
and UPAC was integral to uncovering a complex collusion scheme
involving contracts for infrastructure projects in the
Saint-Jean-sur-Richelieu region in June, 2012. This joint operation
resulted in 77 charges being laid against 11 individuals and 9
companies in the construction industry.
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