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Under the Competition Act (the
"Act"), any six persons who are resident
in Canada, at least 18 years of age and of the opinion that (a) an
offence has been or is about to be committed under the criminal
provisions in the Act, (b) grounds exist for the making of an order
under the civil provisions in the Act or (c) a person has
contravened an order made by the Competition Tribunal or a court
pursuant to the Act, may apply to the Commissioner of Competition
(the "Commissioner") for an inquiry into
the matter. These types of applications are commonly referred to as
"six resident applications".
A six resident application must be accompanied by a statement
that includes the following: (a) the names and addresses of the
applicants; (b) the nature of the alleged contravention or offence
under the Act; (c) the names of persons they believe to be
concerned; and (d) a statement of the evidence supporting their
opinion.
Upon receipt of a six resident application, the Commissioner is
required to commence an inquiry into all such matters as the
Commissioner considers necessary to inquire into with a view of
determining the facts. Upon commencing an inquiry, the Commissioner
has access to and may in his discretion use a wide range of formal
information gathering tools, such as (a) orders requiring oral
examinations under oath, the production of documents and/or the
delivery of written information under oath; (b) search warrants; or
(c) in certain cases, wiretaps.
Six resident applications are a relatively straightforward and
cost-effective tool for Canadians looking to capture the attention
of the Competition Bureau (the
"Bureau"). There are many examples of
six resident applications resulting in inquiries under the Act. In
the past, six resident applications have generally been used to
bring attention to consumer-protection issues. For example, Friends
of the Earth Canada recently brought a six resident application
with respect to alleged false or misleading marketing practices by
certain manufacturers and distributors of single-use
"flushable" wipes. This application has resulted in
increased awareness for Canadians of the environmental impact of
such wipes.
While six resident applicants are entitled to updates on the
progress of an inquiry, they should be mindful that the Bureau is
required by law to conducts its investigations in private and is
bound by strict confidentiality provisions in the Act. If a
prosecution or civil proceeding results from an inquiry, that fact
will become a matter of public record and the Bureau will often
make the public aware through announcements or position statements.
However, where no prosecution or civil proceeding has been
commenced, and despite that the Bureau strives to be as transparent
as possible, parties can, at times, feel "in the dark"
while the Bureau advances its inquiry. Should the Bureau commence
an inquiry pursuant to a six resident application and discontinue
its inquiry, the Commissioner is required to inform the six
resident applicants of the reasons for doing so.
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.
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