Canada: The Sherman Act Section 1 - Canadian Developments

Originally published in ABA Sherman Act Section 1 Newsletter (Fall 2006/Winter 2007)

Competition Bureau Concludes Examination of Gasoline Prices in Canada Following Hurricane Katrina

Following a thorough examination of the Canadian gasoline industry, the Canadian Competition Bureau (the "Bureau") announced on March 30, 2006 that it had found no evidence to suggest that an unprecedented spike in gasoline prices in Canada following Hurricane Katrina resulted from a conspiracy among North American gasoline refiners. Instead, the Bureau found that the primary reasons for the price shock were uncertainty over supply caused by a lack of data immediately following Hurricane Katrina, the closure of several refineries in the Gulf Coast region, and damage to pipelines that supply oil from the Gulf Coast to other refineries in the United States. In fact, the Energy Information Administration in the United States had previously concluded that 10% to 15% of total U.S. gasoline production was halted as a result of the hurricane.

According to the Bureau: "[t]he supply interruption broke down the normal relationship between crude [which accounts for approximately 75% of the pre-tax price of gasoline] and wholesale prices. With a lack of refined product available to North America, prices increased dramatically even though the cost of crude did not change. Price increases are a normal outcome when supply is reduced and demand remains constant. Market forces increase the price in response to a shortage of gasoline."

In addition, the Bureau noted that "[t]he supply reduction caused a spike in the New York Harbour spot price for gasoline, which Canadian refiners use to determine their wholesale prices. This spike forced wholesale, and ultimately retail prices, to increase in Canada and the United States.

The Bureau has now completed six major investigations of the gasoline industry in Canada since 1990. In each case, the Bureau found no evidence to suggest that periodic price increases resulted from a conspiracy to limit competition in gasoline supply.1

Continued Focus On Cartels

On September 28, 2006, Sheridan Scott the Commissioner of Competition (the "Commissioner"), delivered a speech in which she outlined her priorities and plans for the Bureau. Not surprisingly, the Bureau's top enforcement priority continues to be fighting cartels, particularly domestic cartels. To that end, the Bureau's budget for cartel investigations has been increased by approximately 50 percent over the last three years and the investigative capacities of the Bureau's regional offices have been strengthened.

The Bureau's focus on domestic cartels in 2006 began with three distributors pleading guilty to a conspiracy involving the distribution of carbonless sheets in Ontario and Québec. As part of the plea arrangement with the Bureau, the parties agreed to pay fines totalling Cdn.$37.5 million and to remove certain key personnel from their positions.

The Bureau also executed a number of search warrants as part of its investigation of alleged price fixing between competitors in the retail gasoline industry in local markets in the province of Quebec. Similarly, the Bureau executed a number of search warrants as part of its investigation of alleged anticompetitive practices by certain companies in the tour operators industry in Canada. These investigations are ongoing.

More recently, however, the Bureau had a case dismissed at the preliminary inquiry stage, when it failed to satisfy the presiding judge that the arrangement in question (which involved taxi companies in St. John's, Newfoundland agreeing not to bid on contracts put up for tender) had the effect of unduly preventing or lessening competition.

The Bureau's poor track record in litigating cartel cases in recent years (as exemplified by this most recent setback) led it at one point to support proposed amendments to Canada's conspiracy laws that would have eliminated the requirement to prove an "undue" prevention or lessening of competition. This proposal was shelved because it could not generate sufficient consensus. However, according to the Commissioner, the Bureau is continuing to review possible amendment options and hopes to commence public "technical roundtables" on the topic next year.2

Competition Bureau Concludes Examination of Gasoline Prices in Canada Following Hurricane Katrina

In response to questions from the media, the Commissioner confirmed on June 2, 2006 that the Bureau is investigating alleged price fixing between competitors in the retail gasoline industry in local markets in the Province of Québec. As part of its investigation, the Bureau has obtained search warrants from the Superior Court of Quebec against a number of participants in the gasoline industry on the basis "that there are reasonable grounds to believe that price fixing has occurred".

According to the statement issued by the Commissioner, "[t]here is no conclusion of wrongdoing at this time and no charges have been laid. All evidence will be analyzed and we will refer the case to the Attorney General if appropriate." The Commissioner also stated that "[o]ur enforcement record clearly shows that the Bureau is committed to investigate complaints in the petroleum industry and in all sectors of the Canadian marketplace and to take enforcement action under the criminal provisions of the Competition Act whenever appropriate".3

Recent Developments in Canada's "Regulated Conduct Defence"

The "regulated conduct defence" ("RCD") is a common law doctrine applied in Canada that provides a form of immunity from enforcement action under the Competition Act (Canada) (the "Act") to persons engaged in conduct that is directed or authorized by other validly enacted federal, provincial or municipal legislation. The RCD is analogous to the "state action doctrine" developed by the United States Supreme Court.

The Bureau's Information Bulletin on the RCD, first released in December 2002, was criticized for being inconsistent with existing case law. In October 2004, the Bureau began consultations on the role of the RCD in the application of Canada's competition law. On November 1, 2005, the Bureau released a draft Technical Bulletin on "Regulated Conduct" (the "Draft Bulletin"), which replaced the Bureau's 2002 Information Bulletin on the subject. A revised Technical Bulletin on Regulated Conduct (the "Bulletin") was recently released on June 29, 2006.

The Bulletin, substantially unchanged from the Draft Bulletin, represents an attempt by the Bureau to address the criticisms that the Information Bulletin ignored the body of case law that formed the basis for the RCD.

The key points made in the Bulletin are as follows:

Absent further judicial guidance, cautious application of the RCD is warranted.

In determining whether the RCD applies, the Bureau will carefully consider: (i) the purposes and relevant provisions of the Act and the applicable federal, provincial or municipal law; (ii) the interests sought to be protected by both laws; (iii) the impugned conduct; (iv) the parties involved; and (v) the applicable principles of statutory interpretation.

In the case of validly enacted federal legislation, the Bureau will apply the Act unless the Bureau can confidently determine that Parliament intended that the other legislation prevail over the Act – either by clear language in the Act or by the other federal law authorizing or requiring the particular conduct or, more generally, providing an exhaustive statement of the law concerning a matter. The Bureau will not pursue a matter where Parliament has articulated an intention to displace competition law enforcement by establishing a comprehensive regulatory regime that: (i) gives a regulator the authority to take action inconsistent with the Act; and (ii) the regulator has exercised its regulatory authority in respect of the conduct in question. Where the regulator has forborne from regulation, the Bureau will continue to apply the Act to such unregulated conduct.

In the case of validly enacted provincial legislation, the Bureau will consider whether a provincial law authorizes (expressly or impliedly) or requires the impugned conduct.

The Bureau will not necessarily approach the application of the reviewable matters provisions of the Act to conduct regulated by provincial law in the same manner as it will approach the application of the criminal provisions of the Act to such conduct. It is unlikely that the Bureau will pursue a case under any criminal provisions of the Act in respect of conduct that is authorized or required by a valid law. However, the Bureau will not refrain from pursuing regulated conduct under the reviewable matters provisions simply because the provincial law may be interpreted as authorizing the conduct or is more specific than the Act.

With respect to the criminal provisions of the Act, the Bureau will follow the Supreme Court of Canada's decision in Garland v. Consumers' Gas Co. in distinguishing between criminal provisions of the Act that contain "leeway language" (such as, "against the interests of the public" or "unduly limiting competition") and those which do not. Accordingly, the Bureau will refrain from investigating/prosecuting conspiracies under section 45 of the Act in appropriate circumstances because conduct authorized or required by provincial legislation cannot be "undue". With respect to other criminal provisions in the Act, the Bureau will attempt to determine whether Parliament intended that the particular provision(s) of the Act apply to the impugned conduct.

With respect to the reviewable matters provisions of the Act, there is simply not enough case law for the Bureau to limit its statutory mandate by the application of the RCD without further judicial guidance.

The Bureau acknowledges that no court has expressly held that the RCD should be applied differently as between regulators and regulatees. However, the Bureau nevertheless provides that greater scrutiny of the activities of regulatees, whether acting in their private capacity or as selfregulators, may be warranted.

Even if the Bureau decides that the RCD does not apply, it will consider the public interest in pursuing the matter.4

Competition Bureau Obtains Prohibition Order Against Sotheby's

On August 28, 2006, the Federal Court of Canada issued a Prohibition Order against the international auction house, Sotheby's, and its Canadian subsidiary, Sotheby's (Canada) Inc. ("Sotheby's Canada") following an investigation by the Bureau into an international pricefixing conspiracy and its effects on auction services supplied to Canadian clients.

The Bureau's inquiry concerned an international conspiracy to suppress and eliminate competition by fixing auction commission rates, and the effects that this conspiracy may have had on Canadian auction sellers between April 1993 and February 2000. In this regard, as a result of its inquiry, the Bureau determined that Canadians may have been induced by Sotheby's and Sotheby's Canada to consign their property to auctions in the U.S. and elsewhere for sales subject to the fixed commission rates set by the illegal cartel. No evidence was uncovered that the conspiracy affected auctions held in Canada.

The Prohibition Order prohibits Sotheby's, headquartered in New York, and Sotheby's Canada, based in Toronto, from committing any offense contrary to the conspiracy and foreign directives provisions of the Act. The Prohibition Order also prohibits Sotheby's and Sotheby's Canada from doing any act or thing directed toward the commission of an offense under such provisions, and directs them to maintain and implement compliance measures that will prevent any such future illegal activities. In addition, Sotheby's is required to post a notice of the Prohibition Order on its Canadian web page, and both companies are required to (a) provide a copy of the Prohibition Order to each of their directors, officers and employees responsible for the distribution, marketing and supply of services to Canadian auction sellers in relation to auctions held outside Canada; (b) provide a written statement to such individuals that it is company policy to require compliance with the Prohibition Order and that failure to comply could result in, among other things, appropriate disciplinary action that may include termination; and (c) pay investigative costs, calculated by the Bureau at just under Cdn.$800,000.

According to the News Release issued by the Bureau, "[t]he Court's Order addresses the Bureau's concerns that Canadian vendors benefit from competitive prices for international auction services. The Bureau's investigation focused on the harm this international conspiracy inflicted on Canadians."5


1 References: Competition Bureau, News Release, "Competition Bureau Concludes Gasoline Pricing Examinations" (30 March 2006); Competition Bureau, Backgrounder, "Competition Bureau Concludes Examination Into Gasoline Price Spike Following Hurricane Katrina" (30 March 2006)

2 Reference: Sheridan Scott, Speaking Notes (Address to the Canadian Bar Association Annual Fall Conference on Competition Law, 28 September 2006).

3 References: Competition Bureau, Statement by Sheridan Scott, Commissioner of Competition (2 June 2006).

4 References: Competition Bureau, Technical Bulletin on "Regulated" Conduct (June 2006).

5 References: Competition Bureau, News Release, "Competition Bureau Obtains Prohibition Order Against Sotheby's and Sotheby's (Canada) Inc." (28 August 2006); R. v. Sotheby's, No. T-1526-06, Statement of Admitted Facts, August 28, 2006 (F.C.T.D.); R. v. Sotheby's, supra, Prohibition Order, August 28, 2006.

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
Related Video
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