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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 41 In 2014, the court of appeal sent the TREB case back to the tribunal for recon- sideration after concluding that non- com- petitors in particular markets, such as trade associations, can still be subject to abuse of dominance proceedings. The decision also provided a measure of personal vindication for Pecman, who spearheaded the bureau's unsuccessful case against Canada Pipe back in 2006. In April, the Competition Tribunal finally sided with the bureau, finding that TREB's control over the MLS service gave it power over the market, and that its VOW restrictions had substantially prevented competition, creating a "con- siderable adverse impact on innovation, quality and the range of residential estate brokerage services" available in the Great- er Toronto Area. The tribunal ordered TREB to lift the restrictions within 60 days, and to pay the competition commissioner nearly $2 million in costs, although the decision is currently under appeal to the Federal Court of Appeal. Micah Wood, a partner in Blakes' competition and antitrust practice group, says the TREB case in particular is "the most important case for trade associations in a long time." "It's going to add an extra layer when it comes to assessing risks," he says. "What it really re-emphasizes is the importance of trade associations and other collab- orative relationships being implemented properly. You have to make sure there are guidelines in place so that parties are not seen to be using them for anti-competitive purposes." Thankfully for those running trade associations, Pecman and the Competi- tion Bureau have not devoted their efforts exclusively to waving the enforcement stick at them, according to Szentesi. He says the compliance carrot also makes frequent appearances in bureau materials, in the form of association-specific advice and model guidelines. Mark Katz, a partner at Davies Ward Phillips and Vineberg LLP, and co-author of the Competition Law Guide for Trade Associations in Canada, says the bureau's list of "Dos and Don'ts" for minimizing competition law risks is a particularly use- ful resource for trade associations. They include: Do: Establish an effective compliance program, and appoint a compliance officer; Do: Appoint a third party to collect competitively sensitive information, and share it only in aggregated form to avoid attribution to any competitor; Do: Make sure association meeting agendas, and minutes accurately reflect attendance and discussions; Don't: Allow private meetings between competitors under the pretext of associa- tion business; Don't: Establish arbitrary membership criteria that effectively exclude certain com- petitors; Don't: Engage in communications about competitively sensitive information during association meetings or social events. Looking to the future, Katz says codes of ethics could provide the next emerging threat for trade associations, noting that the Competition Bureau's U.S. counterpart, the Federal Trade Commission, has cracked down on the practice in recent years. Because business issues are legal issues. So if you want to get ahead in business, get the degree that gets you there faster. ONE YEAR – PART - TIME – NO THESIS FOR L AWYERS AND NON - LAWYERS law.utoronto.ca/ExecutiveLLM GPLLM Global Professional Master of Laws [Get a Master of Laws] Untitled-1 1 2015-02-25 8:38 AM

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