Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m A U G U S T 2 0 1 6 39 rade associations can look forward to more attention from the Competition Bureau following two major victories for the regulator this spring, accord- ing to a Toronto competition lawyer. In May, the Canadian Wireless Telecommunications Association settled with the bureau over its role in allegedly misleading premium text message advertising, bringing an end to a proceeding that saw the CWTA's three larg- est members agree to pay more than $25 million in refunds to customers and dona- tions to consumer groups. Meanwhile, in April, the bureau also finally prevailed over the Toronto Real Estate Board at the Competition Tribu- nal in its long-standing dispute over the board's restriction on members' use of data from its Multiple Listing Service. "I think the message is that trade asso- ciations really are part of the bureau's enforcement mandate," says Steve Szente- si, a Toronto lawyer and former in-house competition counsel for the Canadian Real Estate Association. "The focus on trade and professional associations has really increased in the last three to five years. Even when they pursue individual companies, the bureau seems to want to understand if the asso- ciation had a role, and then bring them into the litigation. I think it's a great thing, because there are some uncertainties in competition law regarding how it applies to associations," Szentesi adds. Trade associations can't say they weren't warned about the extra scrutiny: Commissioner of Competition John Pec- man has worked in references to them in a large chunk of his public remarks since taking over from Melanie Aitken in late 2012. During one of his very first speeches as interim commissioner, he took the opportunity to damn them fulsomely with faint praise: "The bureau does not believe that trade associations are inherently bad," he said in the October 2012 address at the Toronto offices of Blake Cassels and Graydon LLP. But, Pecman went on, "It is also clear to us that there are practices they engage in which raise significant risks." Still, the TREB and CWTA cases marked a departure from the bureau's tra- ditional concerns about trade associations, according to Lawson Hunter, a former civil servant who led the federal government's competition policy and enforcement in the 1970s. Historically, he says, trade associa- tions were viewed as the potential "hub of a hub-and-spoke conspiracy;" providing the forum for competitors to meet and forge relationships that could easily result in anti- competitive behaviour. L E G A L R E P O RT \ C O M P E T I T I O N L AW MATT DALEY Competition Bureau targets trade associations Recent decisions provide ammunition for bureau's stated goal of scrutinizing associations for anti-competitive practices. By Michael McKiernan T

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