Canada: New Price Maintenance Enforcement Guidelines In Canada

Last Updated: October 2 2014
Article by John F. Clifford and Devin Anderson

On September 15, 2014, the Competition Bureau released its final enforcement guidelines entitled Price Maintenance (Section 76 of the Competition Act) (the "Guidelines"), which describe the Bureau's approach to enforcing the price maintenance provision in Canada's federal competition legislation.1 Although the Guidelines are not legally binding, they provide important insight and clarity into the manner in which the Bureau intends to apply the Competition Act to pricing-related policies issued and actions taken by suppliers and others in Canada.

Overview

Section 76 of the Competition Act empowers the Competition Tribunal to make an order to stop the following conduct: 

(a)    suppliers who, by agreement, threat, promise or like means, influence upward or discourage the reduction of the price at which another person supplies, offers to supply, or advertises the supplier's products;

(b)    suppliers who refuse to supply products or otherwise discriminate against a person or class of persons because of their low pricing policy; and

(c)    persons who, by agreement, threat, promise or like means, induce a supplier, as a condition of doing business with the supplier, to refuse to supply products to another person or class of persons because of that person's low pricing policy,  if, conduct has had, is having, or is likely to have an adverse effect on competition in a market.

The Tribunal's remedial jurisdiction is limited to ordering the person who engaged in the conduct to stop, or, in the case of supplier-side discrimination or refusal to supply, to accept the affected person as a customer on usual trade terms. The Tribunal has no authority to impose a fine or other monetary penalty.

Prior to 2009, price maintenance in Canada was a "per se" criminal offence - i.e., an offense was committed merely be engaging in the proscribed conduct whether or not it had any impact on competition. That criminal offence was repealed and slightly remodeled by the new civil provision in 2009.

The new civil provision, with the requirement that price maintenance conduct have an adverse effect on competition, created broad scope for suppliers to adopt policies that could have the affect of influencing the resale price of their products – such as Minimum Advertised Pricing Policies - and to take action to prevent low-pricing. A welcome change, but the new breadth of the provision coupled with a dearth of cases (only one in the past five years) has sometimes made it difficult to provide clear advice about how the provision would be applied in practice by the Bureau, so the Guidelines are welcomed.

Insights from the Guidelines

The price maintenance provision of the Competition Act is layered and complex. The Guidelines very helpfully provide a nuanced interpretation of many of its key provisions reflecting the Bureau's recent experiences and commentary from the Competition Tribunal in the VISA/MasterCard case2, the only decision of the Tribunal to date that has considered the provision.

Key insights from the Guidelines include:

  • The Bureau recognizes that price maintenance often is pro-competitive (even when engaged in by firms with significant market presence) in that the conduct may enhance inter-brand competition, correct downstream free-riding or otherwise be demand-enhancing.
  • An increase in wholesale prices by a supplier in not price maintenance.
  • There must be a causal link between a supplier's conduct and a reseller's pricing; the mere fact that downstream prices increased is not sufficient to conclude a supplier influenced the price.
  • The Guidelines state that price maintenance conduct may be direct (e.g. supplier specifies particular price or minimum resale price) or indirect (e.g. terms or conditions of sale that influence prices; a supplier imposing price-parity agreements). (Note that this approach was not fully accepted by the Tribunal in the VISA/MasterCard case.)
  • A refusal to supply can be express (i.e., stop selling) or constructive (e.g. more onerous supply terms; unreasonable delays for product delivery) and "discrimination" by a supplier may be through differentiated pricing or non-price conduct such as supplying product on less favourable terms.  
  • The presence of market power is a "key factor" in determining whether price maintenance conduct is capable of resulting in an adverse effect on competition (and accordingly is likely to attract Bureau scrutiny).
  • The Bureau's principal areas of concern in this context are:

(a)    in respect of suppliers who influence prices, whether the price maintenance conduct forecloses downstream distribution channels and excludes suppliers that would otherwise compete with the supplier who is engaging in the conduct; and 

(b)    in respect of persons who induce a supplier not to supply, whether the conduct excludes competitors of the person, such that prices (or service levels) in the market can be profitably maintained at higher levels (or lower service levels) than in the absence of the conduct. 

Concluding Observations

The Guidelines are a welcome addition to the lengthy roster of other enforcement guidelines issued by the Bureau outlining its approach to enforcing the Competition Act. While arguably the Bureau is overly conservative in its interpretation of some aspects of the price maintenance provision, the Guidelines generally are balanced and confirm that there will be relatively few instances in which price maintenance conduct will warrant enforcement action by the Bureau. 

Footnotes

1.The Guidelines are available online at http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/03787.html

2.See Commissioner of Competition v. Visa Canada Corporation and MasterCard International Incorporated, 2013 Comp. Trib. 10. McMillan represented MasterCard International.

The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

© McMillan LLP 2014

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

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

Authors
John F. Clifford
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

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