Canada: Competition Law Review - May 2015


Landfill merger saved by efficiencies

A landfill merger to monopoly that would prevent prices from falling was saved by efficiencies, the Supreme Court of Canada held. Important principles for merger analysis from this decision include:

  • The Competition Tribunal may make predictions about the future based on the evidence before it.
  • In determining whether efficiencies brought about by the merger are greater than and offset its anti-competitive effects, the Tribunal should employ a two-step analysis, first comparing quantitative efficiencies and anti-competitive effects, and then qualitative efficiencies and effects, before finally determining whether the total efficiencies outweigh the total anti-competitive effects.
  • Anti-competitive effects that can be quantified must be; if the Commissioner fails to do so, the Tribunal cannot treat them qualitatively.

(See article)

Pest control: parasitic causes of action examined in BC

BC courts have been wrestling with whether common law and equitable claims can be based Competition Act offences, in addition to the statutory cause of action in the Act itself. Parliament intended the Competition Act to be a complete code, thus excluding remedies apart from those provided in the Act, the BC Court of Appeal held in Wakelam.

Following this decision, the BC Supreme Court struck claims of unlawful conspiracy, unlawful interference with economic interests, and constructive trust in Watson, but certified a class action against Visa and MasterCard, major Canadian banks, and other financial institutions, alleging that the credit card interchange fees and rules breach the Competition Act. Claims based on breaches of the criminal price maintenance provisions were statute-barred, since these provisions were repealed more than two years before the action was launched, the court held.

However, less than four months later, another BC Supreme Court judge refused to strike similar claims in a case alleging that Microsoft conspired with various computer manufacturers to gain a monopoly over PC operating systems. The judge said that Wakelam conflicted with the recent SCC decision on the tort of unlawful interference with economic relations in Bram Enterprises, because that case referred to an earlier case holding that a breach of a predecessor to the Competition Act could support the tort of conspiracy.

A third BC judge took the same view in Fairhurst, and certified a class action alleging that De Beers and diamond companies conspired to fix prices for diamonds.

The issue is now before the BC Court of Appeal in Watson.

Class action plaintiffs can obtain wiretap evidence

Class-action plaintiffs can obtain disclosure of wiretap evidence obtained by the Competition Bureau, the Supreme Court of Canada held. The Competition Act does not protect wiretap intercepts as confidential information. Privacy concerns can be addressed through conditions imposed by the court on disclosure, as well as the duty of confidentiality imposed on parties by discovery rules. (See article)


DENSO, Panasonic, and Yamashita Rubber joined the list of those pleading guilty to rigging bids for components sold to Honda and Toyota for cars manufactured in Canada, bringing the total to seven guilty pleas and over $56 million in fines. (See article)

Cruising for a fine: ECU Line Canada Inc., Overseas Container Forwarding, and two of ECU's executives, pleaded guilty to conspiring to fix ocean freight surcharges, and were fined nearly $1.7 million. (See article)

Microtime and six individuals were charged with rigging bids for IT service contracts with Library and Archives Canada. (See article)

The Bureau laid additional charges alleging a complex bid-rigging scheme for municipal infrastructure contracts in Saint-Jean-sur-Richelieu, Quebec, bringing the total number charged to 13 individuals and 11 companies, relating to contracts worth over $21 million. (See press release)

The Bureau dropped its investigation into alleged collusion in the setting of Yen LIBOR rates due to insufficient evidence. (See Bureau press release)

Proffer information not privileged: Information disclosed to the Bureau during proffers by applicants for immunity or leniency is not protected from disclosure to other accused persons by settlement privilege, an Ontario court held. (See article)

No shortcuts: An evidentiary shortcut that imputes knowledge of documents to an accused runs contrary to the presumption of innocence and is unconstitutional, an Ontario court held. The decision is under appeal.


The transaction size threshold for pre-merger notifications was increased to $86 million in February 2015, up from $82 million in 2014. The party size threshold remains at $400 million. (See article)

Loblaw Companies Limited bagged Shoppers Drug Mart Corporation by agreeing to sell 18 of its retail stores and 9 pharmacies, and to certain behavioural restrictions (see article). The Bureau approved the sale of several Shoppers stores throughout the year. (See article)

The Bureau allowed Medtronic, Inc. to buy Covidien plc after Medtronic agreed to sell Covidien's drug-coated balloon catheter business to The Spectranetics Corporation. (See article)

Extra! Extra! Read all about it! Transcontinental Inc. agreed to sell 34 of the 74 weekly newspapers it is buying from Quebecor Media Inc. (see article). The Bureau has since approved the sale of 14 of these newspapers. (See article)

TELUS Health agreed to make it easier for pharmacists in Quebec to switch service providers in order to obtain clearance of its acquisition of XD3 Solutions. (See article)

The Bureau allowed Bell Aliant Regional Communications Inc. to buy O.N. Tel Inc. after Bell Aliant agreed to a long-term lease of a portion of O.N. Tel's network to Bragg Communications Inc. (See the Bureau's press release)

Bragg backed out of its proposal to buy Bruce Telecom from the Municipality of Kincardine after the Bureau said it would seek to block the merger. (See the Bureau's press release)

Louisiana Pacific Corporation abandoned its plan to acquire Ainsworth Lumber Co. Ltd. after the Bureau and the US Department of Justice determined that the acquisition would reduce competition for the supply of oriented strand board. (See article)

That's a wrap: The Bureau allowed Reynolds Consumer Products, Inc. to acquire Novelis Foil Products North America division of Novelis Inc. and Novelis Corporation. (See article)

The Bureau allowed CHS Inc. to buy 7 agri-product retail outlets and 9 anhydrous ammonia businesses from Agrium Inc. (See the Bureau's press release)

Trucking company TransForce Inc. got the green light from the Bureau to acquire its rival Contrans Group Inc. (See article)

Not Offside: The Bureau concluded that the acquisition by Canadian Tire affiliate FGL Sports Ltd. of Pro Hockey Life Sporting Goods, Inc. was unlikely to check competition in the retail market for hockey equipment. (See article)

Sobeys Inc. sold 22 grocery stores to Overwaitea Food Group LP and Federated Co-operatives Limited, pursuant to a 2013 consent agreement linked to its acquisition of Canada Safeway. (See the Bureau's press release)

The Federal Court dismissed a challenge by TELUS to new rules requiring consent from the Minister of Industry for "deemed transfers" of cheap spectrum acquired by new entrants to large telcos even after the initial five year moratorium on such transfers. TELUS complained that the Minister had unfairly changed the rules. The court also rejected TELUS' contention that this rule was invalid because the Commissioner of Competition and Competition Tribunal have jurisdiction over mergers. (Read the Court's decision)

No action: some of the transactions in which the Bureau issued no action letters were:

  • Continental AG's acquisition of Veyance Technologies, Inc. due to the parties' settlement agreement with the U.S. Department of Justice.
  • Reliance Comfort Limited Partnership's acquisition of its largest competitor National Energy Corporation.
  • Manulife Financial Corporation's acquisition of Standard Life plc.
  • Burger King's acquisition of Tim Hortons.
  • Garda World Security Corporation's acquisition of G4S Cash Solutions (Canada) Limited.
  • Saputo Dairy Products Canada G.P.'s acquisition of Scotsburn Co-operative Services Limited.
  • Essilor International S.A.'s acquisition of Coastal Contacts Inc.
  • TVA Group's acquisition of Vision Globale.


Second showing for TREB and the Commissioner: the Commissioner's challenge to the Toronto Real Estate Board's MLS® rules will be reheard following the Federal Court of Appeal decision that just because TREB does not compete with its members in the market for real estate services does not mean it cannot be liable under the abuse of dominance provisions. (See decision)

Scalded! Hot water heater rental supplier Reliance agreed to pay a $5 million fine and to make it easier for customers to switch to competitors in order to settle the Bureau's abuse of dominance allegations. (see Bureau press release) The Tribunal held that the case against Direct Energy can continue even though EnerCare bought it and agreed not to continue Direct Energy's allegedly anticompetitive practices. (See article; Bureau press release)

Kobo's attempt to challenge the factual basis underpinning the consent agreement between the Commissioner and ebook publishers was rejected. Challenges are limited to whether the terms of the consent agreement go beyond the type of orders that the Tribunal can issue, whether it alleges the substantive elements of the relevant Competition Act provisions, and whether its terms are unenforceable, for example, because they are too vague. Kobo is appealing. (See article)

When applying for production orders, the Commissioner does not have to lead evidence to prove that his inquiry is bona fide, the Federal Court held in granting orders in the ebooks case against Pearson Canada Inc. and Penguin Canada Books Inc. The Commissioner must make full and frank disclosure, and show that the information sought is relevant and that the order is not excessive, disproportionate or unnecessarily burdensome. (See decision)

Apple Canada Inc. was ordered to hand over documents as part of the Bureau's investigation into its agreements with wireless carriers.

Alcon Canada began to resupply its anti-allergy drug Patanol after the Bureau began to investigate allegations that it intentionally disrupted the supplies in order to limit or prevent competition from generic drug companies. The Bureau then dropped the inquiry. (see Bureau announcement)

The Bureau discontinued its investigation into allegations that CN implemented a rail pricing strategy for "transloading" of lumber into ocean shipping containers in Vancouver that would make it commercially unprofitable to ship to competitors' facilities. (See Bureau announcement).

In its Price Maintenance Enforcement Guidelines, the Bureau recognizes that price maintenance can enhance non-price dimensions of intra-brand competition, and promote inter-brand competition. But it can harm competition if it excludes rivals or inhibits competition among suppliers or retailers. (See guidelines)

The Bureau recommended that Toronto should promote taxicab competition by issuing new taxi licences and allowing new software applications that arrange and pay for transportation services.

Large wireless carriers have market power, and are charging new carriers more for roaming than they charge US carriers, the Bureau said in a submission to Canada's telecom regulator. The Bureau advised the CRTC to prohibit unfair discrimination against new carriers.


OMG GR8 news: Rogers agreed to refund over $5 million to customers that were billed for certain premium text message services, such as trivia questions and ringtones, in order to settle the Bureau's allegations that it failed to disclose that these services were not free. The case continues against Bell and Telus.

Bad RE-AKTion: Bauer agreed to stop making claims that Bureau alleged created the impression that RE-AKT helmets protected from concussions. (See article)

Weeks after the Bureau cleared National Energy Corporation's takeover by Reliance Home Comfort, National paid $7 million to settle allegations that its door-to-door salespeople misled consumers by telling them they needed access to their water heaters for safety reasons, legal requirements, or potential upgrades (see article).Earlier in 2014, the Ontario Court of Appeal upheld a finding that National made misleading statements about another competitor, Direct Energy. (See decision)

Duvets go down: At Bureau's request, home retailer JYSK Canada recalled two duvet brands after testing arranged by the Bureau detected insufficient "down" and "bird of origin" content to qualify for "down" or "goose down" marketing standards. (see Bureau press release)

No longer at this address: A Quebec telemarketing scammer who demanded payment for non-existent business directory listings was sentenced to 18 months in prison after pleading guilty to eight charges of misleading advertising and deceptive telemarketing. (See article)

Error! Job Not Found: In Alberta, an online scammer was sentenced to 2 ½ years in jail for making false representations on an online job opportunities service. He was also ordered to pay $185,000 in restitution to his victims, plus a $164,000 fine. (See article)

Sometimes used clothing donation bins are run by for-profit businesses, with only a small share going to charity, even though the signage may suggest that all the clothes go to charity, the Bureau warned. (See Bureau press release).


Dow Chemical Company and its Canadian affiliate face allegations that they participated in a conspiracy to fix prices for polyether polyol after an Ontario court certified a class action brought on behalf of direct purchasers. (See decision)

An Ontario court certified a class action alleging that Telus and Bell failed to disclose that they rounded time up to the nearest minute when billing for mobile telephone calls. (See decision)

Class action plaintiffs in BC allege that HSBC's mortgage arm and Household Trust Company did not disclose that part of the title insurance premiums paid to First Canadian Title were for legal fees, thus breaching the Competition Act's misleading advertising provisions, as well as various provincial consumer protection laws. The court certified the class action. (See decision)

There was no prima facie evidence that Coca Cola misled consumers into purchasing vitaminwater® by misrepresenting its sugar content and health benefits, a Quebec court held in refusing to authorize the class action. (See decision)

Honda agreed to cash payments of $100-$200 plus cash rebates of $500-$1,000 to those who owned or leased a Honda Civic Hybrid between 2003 and 2009 to settle a class action alleging that its hybrid models did not achieve the fuel economy that Honda had claimed. (See decision)

The Ontario DRAM price fixing class proceeding continued to wind up with the addition of four more court-approved settlements: Infineon Technologies AG, Mitsubishi Electronic Corporation, Toshiba Corporation, and Winbond Electronics Corporation, increasing the pot to $79.5 million (up from $61.5 million in 2013). (See decision)

Class action plaintiffs obtained a $6.5 million default judgment against operators of a pyramid selling scheme in the Federal Court. (See decision)

A group of aftermarket filter makers agreed to pay $350,000 to resolve allegations that they fixed prices for aftermarket oil and air filters for cars and trucks. (See decision)

Not Good Enough: an Ontario court refused to approve a settlement agreement between Quiznos franchisees, the defendant franchisors and food supplier, Good Food Service Inc., finding the scope of the release was too broad given the nominal amount of damages. (See decision)

Findings of fact made in US and EU proceedings are not binding in Canada, the BC Supreme Court held in Pro-Sys Consultants Ltd. v. Microsoft Corporation. (See decision)


Good neighbours: a US court ordered a US company to disclose documents to the US Federal Trade Commission to send to the Bureau in Canada. The Bureau sought the documents for its premium text messaging. (See Bureau press release)

An Ontario judge enforced a request from a US court to obtain evidence from two Ontario residents for a US class action. The court held that concerns about self-incrimination could be dealt with by protections built into the order. (See article)

Going Postal: A Toronto man was sentenced by a US federal court to 10 years in prison for defrauding consumers out of over US$10 million in an advanced-fee credit card scam, following an investigation by the US Postal Inspection Service. (See Bureau press release)

Businessman John Bennett became the first Canadian extradited to the US on antitrust charges after a four-year court battle. He faces bid-rigging, conspiracy, kickback and fraud charges. The company he founded and two of its executives have already pleaded guilty, paid fines, and served time in US prisons. (See article)

Affleck Greene McMurtry's Competition and Regulatory Law Team

AGM's competition law team is one of Canada's leading competition law practices. We defend businesses and individuals facing Competition Bureau inquiries and criminal and administrative prosecutions in the court and the Competition Tribunal. We act for businesses involved in price fixing class actions and other private litigation. We prepare merger notifications. We also help businesses comply with the Competition Act by providing practical advice.

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
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