A key aspect of Canada’s consent procedure for settling matters with the Commissioner of Competition (the Commissioner) before the Competition Tribunal (the Tribunal) has come under attack. The procedure was streamlined in 2002, with a change from the issuance by the Tribunal of an order on consent, often following a hearing, to the simple registration of a consent agreement – which then has the force of an order of the Tribunal.
There are several differences between the old and the new procedures, one being that supporting evidence is no longer filed with the Tribunal, and another being that the scope for intervention by third parties is (or was thought to have been) significantly narrowed. Previously, intervenors in consent order proceedings could potentially delay them for months, as in the case of Canada (Director of Investigation and Research) v. Imperial Oil Ltd. (1989), 45 B.L.R. 1 (Comp. Trib.), or even derail them altogether. Under the new procedures, potential intervenors are limited to an application to vary or rescind a consent agreement, within sixty days after its registration. In addition, they must show that they are directly affected by the agreement, and that the terms of the agreement "could not be the subject of an order of the Tribunal."
Through an application to rescind a consent agreement registered in December 2004 in connection with the acquisition by West Fraser of Weldwood (both forestry companies active in B.C.), several First Nations groups, including Burns Lake Native Development Corporation, the Council of Lake Babine Nation, the Council of Burns Lake Band and the Council of Nee Tahi Buhn Indian Band (the Applicants), have challenged the consent agreement registration process. Among other things, the Applicants argue that there was no evidentiary basis upon which the Tribunal could have issued any order at all.
If successful on this ground, the Applicants’ challenge to the consent agreement registration process could mean, at a minimum, a return of the requirement to file a statement of grounds and material facts and supporting affidavits along with the consent agreement itself. Some feel that the requirement to file such minimal evidence provided a useful check on the Commissioner’s rather considerable power to force concessions from merging parties (or those under investigation for other alleged Part VIII conduct). On the other hand, a requirement to file supporting evidence would also make it tougher to expeditiously conclude merger, abuse of dominance and other civil investigations where the Commissioner has a concern and the parties are prepared to agree to a remedy – and also facilitate further interventions.
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