The most widely read magazine for Canadian lawyers
Issue link: https://digital.canadianlawyermag.com/i/50818
LEGAL REPORT: BUSINESS/CORPORATE LAW non-compete clause in an employment agreement for the sale and assets of shares between the parties, and blanket licence agreements on common prices for the sale of artistic works. Other areas the bureau would review under s. 90(1) are agreements to abstain from making material changes to a business pending the consummation of a merger and non- compete obligation between a parent company and joint venture where such obligations correspond only to the prod- ucts, services, and territories covered by the joint-venture agreement. The government's enforcement agency will make considerations, the final inter- pretation of what is intended with the law will be up to the courts. This could happen if a private action is brought using the laws, and not the guidelines as guidance. On this point, John Bodrug, a compe- Competition Law Service The law is evolving – don't get left behind! Important amendments to the tition lawyer with Davies Ward Phillips & Vineberg LLP and the chairman of the Canadian Bar Association's national competition law section says: "the draft indicates that the bureau will pursue criminal investigations only against agreements that have no pro-competitive benefits. However, such guidelines are not binding on the bureau and it also remains to be seen how the courts will interpret the potentially broad language in the new criminal prohibition on cer- tain types of competitor agreements in the context of private actions." The legislation currently in force became law on March 12, 2009 – the most significant changes in decades. These amendments to Canada's competition rules target key provisions of the Act. Competition Law Service addresses all of these changes including: • Conspiracy – introduction of new per se criminal cartel provision • Deceptive Marketing – increased penalties for criminal and non-criminal offences and introduces restitution as a remedy. • Abuse of Dominance – administrative monetary penalties and repeal of the airline exemption. • Pricing & Price Maintenance Provisions – the elimination of the criminal pricing and price maintenance provisions and the expansion of corresponding civil remedies. • Competitor Collaboration – the introduction of a civil conspiracy provision. • Merger Review – new limits on merger review and processes. • Bid-Rigging – dealing with withdrawal of bids. This service provides: • the full text of the , including all of the changes implemented on March 12, 2009, fully digested and annotated • the Competition Tribunal Rules • the Competition Bureau Fee and Service Standards Handbook Order your copy today! Looseleaf & binders (4) • $510 Releases invoiced separately (2-3/yr) • P/C 0491030000 Vol. 1 ISBN 0-88804-053-9 • Vol. 2 ISBN 0-88804-169-1 Vol. 3 ISBN 0-88804-324-4 • Vol. 4 ISBN 0-88804-444-5 requires a test to prove an impact on commerce. However, Charles Wright, a partner and class action litigator at Siskinds LLP, says damages would still need to be proven in private matters, which means those making a complaint would have to prove an impact on com- merce. "Where there is a price fixing cartel, where they had a long standing semi-formal agreement, that impacts commerce," says Wright. "When you impact commerce you impact it unduly, and in [the case of those making com- plaints] you have to prove damages, so having to prove it impacted commerce is hardly anything additional to our case." One impact the legislation may have on private actions is where Canadian lawyers are following U.S. actions. Wright says U.S. authorities have indicated they will more aggressively pursue price fix- ing and cartels south of the border. This could, in turn, be a boon for class action lawyers in Canada who often follow U.S. lawsuits and then seek plaintiffs. The argument is there is really only one mar- ket in North America and if there is a cartel agreement in the U.S., it is likely to be happening in Canada as well. The U.S. per se illegal rule is often cited by respon- dents as a reason why the same action would have to meet a stiffer test before it can move forward in Canada. "We sort of welcomed the change For a 30-day, no-risk evaluation call: 1.800.263.2037 Canada Law Book is a Division of The Cartwright Group Ltd. Prices subject to change without notice, to applicable taxes and shipping & handling. 52 JULY 2009 www. C ANADIAN Law ye rmag.com ADDY_Competition Law Service (CL 1-2is).indd 1 6/15/09 4:24:41 PM CL0609 over to per se so we would have to stop hearing about it," says Wright. "But from a practical perspective we don't really believe that the undueness standard real- ly was any significant hurdle in our cases, so we don't really see a huge change in the litigation." George N. Addy and W illiam L. Vanveen Competition Act Competition Act