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Claims based on breaches of the criminal price maintenance provisions were statute-barred, since these provisions were repealed more than two years before the action was launched, the court held.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.

Similar Articles
Relevancy Powered by MondaqAI
Davies Ward Phillips & Vineberg
Norton Rose Fulbright Canada LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Davies Ward Phillips & Vineberg
Norton Rose Fulbright Canada LLP
Related Articles
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
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 (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

To Use 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.


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.


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