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40 A U G U S T 2 0 1 6 w w w . C A N A D I A N L a w y e r m a g . c o m "They were the places where competi- tors could sit down and agree on price, or on market allocation, or whatever else. If you look at a lot of the cases brought under the old Combines Investigation Act, most of them came out of activities at trade associations," says Hunter, who is now counsel to the Ottawa office of Stike- man Elliott LLP. But that wasn't the scenario in either the TREB or CWTA cases, according to James Musgrove, the co-chair of the competition and antitrust practice group at McMillan LLP in Toronto. "It was the activities of the associa- tions themselves that were challenged, not just their members," Musgrove says. "The bureau is saying that if it sees something that it thinks has crossed the line, it is pre- pared to take action. Just because it happens to involve an association doesn't insulate you from enforcement." The bureau kicked off its premium text messaging investigation in 2012 after com- plaints from cellphone customers that they had been charged by third parties for ser- vices, including ringtones, horoscopes, and trivia questions, without ever intending or agreeing to purchase them. Civil legal proceedings followed later that year against the CWTA and its three largest members, telecommunications giants Bell Canada, Rogers Communica- tions Inc., and Telus Corp., accusing them of misleading consumers into believing the content was free, and that measures were in place to prevent unauthorized charges. Although the CWTA was not involved in the actual billing of consumers, it estab- lished and managed the framework for premium text message services through its Common Short Code Council. None ultimately admitted wrongdoing, but Rogers was the first to settle last year, agreeing to pay back more than $5 million to customers, followed by Telus, which reached an agreement to refund $7.3 mil- lion in December. The biggest settlement was saved for last when Bell agreed to reimburse its customers up to $11.8 million in May this year. The CWTA settled at the same time, agreeing to develop a public awareness campaign around the issue, and committing to update its corporate compli- ance program with a particular focus on practices relating to billing customers on behalf of third parties. The bureau's case against TREB dates back even further, with proceedings launched at the Competition Tribunal in 2011 claiming the group's restrictive rules on the use of MLS listings and related data violated the abuse of dominance provisions in s. 79 of the Competition Act by sup- pressing innovation in the sector. Online brokers, who wanted to provide consum- ers with access to information about older listings and previous sale prices via virtual office web sites, were particularly hard-hit by the rules, according to the bureau. However, the regulator needed some help from the Federal Court of Appeal along the way, since the tribunal originally dismissed its case against TREB in 2013 for failing to comply with the rule in Canada (Commissioner of Competition) v Canada Pipe Co., a 2006 case in which the appeal court concluded a dominant firm must be a competitor of the firms harmed by its anti-competitive behaviour in order to violate s. 79. Get expert insight on the legislation and case law impacting roads, streets, and highways. This classic resource offers a practical approach to 41 key road principles in Ontario. For each principle, you'll find a concise explanation and the historical background as well as the most recent cases and a review of the Municipal Act, 2001. New in this edition • Eight new road principles – Private Access Roads – "Seasonally Maintained" Roads – Road Easements: The 40 Year Shelf Life under the Registry Act – Letters of Credit: Municipal Services – "Improved Roads" Surveys – Public Lands Act: Roads Under – Local Roads Boards: Roads Administered By – Road Allowances: Mistakes When Opening • References to new legislation • Recent judicial decisions • Two new chapters Turn to Russell on Roads, 3rd Edition, and you'll understand the issues, prepare for the problems, get immediate access to the case law, and make sense of it all with clear commentary. Faced with a road problem in Ontario? Russell on Roads, 3rd Edition W.D. (Rusty) Russell, Q.C. Order # 986453-65203 $113 Softcover approx. 450 pages April 2015 978-0-7798-6453-9 Shipping and handling are extra. Price(s) subject to change without notice and subject to applicable taxes. 00236WM-A54293 Available risk-free for 30 days Order online: www.carswell.com Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 L E G A L R E P O RT \ C O M P E T I T I O N L AW

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