Originally published in the 9 August 2005 issue of Competition Law Insight
The Canadian Competition Bureau (the Bureau) is withdrawing its current information bulletin on the regulated conduct defence (the Bulletin) in response to comments made during a recent consultation process. A new draft version is due to be published in the fall this year.
The regulated conduct defence (RCD) is a common law doctrine providing immunity from enforcement under the Competition Act to people engaged in conduct that is directed or authorised by other validly enacted legislation.
The Bulletin sets out the Bureau’s enforcement approach to the RCD; and the new version is likely to be even more restrictive. Possible changes include:
limiting the RCD to apparent conflicts between the Competition Act and provincial (rather than federal) statutes;
excluding the defence in cases involving the Competition Act’s criminal provisions which do not incorporate any sort of market-impact test, for instance price maintenance and bid-rigging; and
stating that the RCD does not govern the Competition Act’s non-criminal reviewable practices provisions relating to, for instance, abuses of dominance.
Ultimately, however, whatever form the Bulletin takes, it will still only reflect the Bureau’s views and enforcement approach. It will not amount to a statement of the law; and the final legal interpretation of the RCD will rest with the courts. In recognition of this fact, the Bureau has said that it will look for the right case to litigate so as to give legal force to its particular interpretation of the RCD. The Bureau has also hinted that it may even seek amendments to the Competition Act, if necessary.
The Bureau’s announcement regarding the withdrawal of the Bulletin, as well as the current version of the Bulletin and the comments received as part of the consultation process, are all available on the Bureau’s website at www.competitionbureau.gc.ca.
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The Canadian Competition Bureau issued a template document for use as a form of Consent Agreement, to be filed with the Competition Tribunal to resolve concerns the Bureau may have with proposed mergers.
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