Budget Implementation Act, 2009 (S.C. 2009, c. 2)
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Assented to 2009-03-12
PART 12R.S., c. C-34; R.S., c. 19 (2nd Supp.), s. 19COMPETITION ACT
Amendments to the Act
Marginal note:1999, c. 31, s. 50(F)
413. Sections 50 and 51 of the Act are repealed.
Marginal note:1999, c. 2, s. 12(1)
414. (1) Subsection 52(1.1) of the Act is replaced by the following:
Marginal note:Proof of certain matters not required
(1.1) For greater certainty, in establishing that subsection (1) was contravened, it is not necessary to prove that
(a) any person was deceived or misled;
(b) any member of the public to whom the representation was made was within Canada; or
(c) the representation was made in a place to which the public had access.
(2) Paragraph 52(5)(a) of the Act is replaced by the following:
(a) on conviction on indictment, to a fine in the discretion of the court or to imprisonment for a term not exceeding 14 years, or to both; or
Marginal note:1999, c. 2, s. 13
415. Paragraph 52.1(9)(a) of the Act is replaced by the following:
(a) on conviction on indictment, to a fine in the discretion of the court or to imprisonment for a term not exceeding 14 years, or to both; or
Marginal note:2002, c. 16, s. 6
416. Paragraph 53(6)(a) of the Act is replaced by the following:
(a) on conviction on indictment, to a fine in the discretion of the court or to imprisonment for a term not exceeding 14 years, or to both; or
Marginal note:R.S., c. 19 (2nd Supp.), s. 36; 1990, c. 37, s. 30; 1999, c. 31, s. 51(F)
417. Section 61 of the Act is repealed.
418. Subsection 64(2) of the Act is replaced by the following:
Marginal note:Offence and punishment
(2) Every person who contravenes subsection (1) is guilty of an offence and
(a) liable on conviction on indictment to a fine in the discretion of the court or to imprisonment for a term not exceeding 10 years, or to both; or
(b) liable on summary conviction to a fine not exceeding $100,000 or to imprisonment for a term not exceeding two years, or to both.
Marginal note:R.S., c. 19 (2nd Supp.), s. 38; 1999, c. 2, s. 18
419. Subsections 65(1) to (3) of the Act are replaced by the following:
Marginal note:Contravention of Part II provisions
65. (1) Every person who, without good and sufficient cause, the proof of which lies on that person, fails to comply with an order made under section 11 and every person who contravenes subsection 15(5) or 16(2) is guilty of an offence and
(a) liable on conviction on indictment to a fine in the discretion of the court or to imprisonment for a term not exceeding two years, or to both; or
(b) liable on summary conviction to a fine not exceeding $100,000 or to imprisonment for a term not exceeding two years, or to both.
Marginal note:Failure to supply information
(2) Every person who, without good and sufficient cause, the proof of which lies on that person, contravenes subsection 114(1) is guilty of an offence and liable on conviction on indictment or on summary conviction to a fine not exceeding $50,000.
Marginal note:Destruction or alteration of records or things
(3) Every person who destroys or alters, or causes to be destroyed or altered, any record or other thing that is required to be produced under section 11 or in respect of which a warrant is issued under section 15 is guilty of an offence and
(a) liable on conviction on indictment to a fine in the discretion of the court or to imprisonment for a term not exceeding 10 years, or to both; or
(b) liable on summary conviction to a fine not exceeding $100,000 or to imprisonment for a term not exceeding two years, or to both.
Marginal note:1999, c. 2, s. 19
420. The portion of section 66 of the Act before paragraph (a) is replaced by the following:
Marginal note:Contravention of order under Part VII.1 or VIII
66. Every person who contravenes an order made under Part VII.1, except paragraphs 74.1(1)(c) and (d), or under Part VIII, except subsection 79(3.1), is guilty of an offence and liable
Marginal note:2002, c. 8, par. 198(c), c. 16, s. 8
421. Subsection 73(1) of the Act is replaced by the following:
Marginal note:Jurisdiction of Federal Court
73. (1) Subject to this section, the Attorney General of Canada may institute and conduct any prosecution or other proceedings under section 34, any of sections 45 to 49 or, if the proceedings are on indictment, under section 52, 52.1, 53, 55, 55.1 or 66, in the Federal Court, and for the purposes of the prosecution or other proceedings, the Federal Court has all the powers and jurisdiction of a superior court of criminal jurisdiction under the Criminal Code and under this Act.
Marginal note:1999, c. 2, s. 22
422. Subsection 74.01(6) of the Act is repealed.
423. Section 74.03 of the Act is amended by adding the following after subsection (3):
Marginal note:Certain matters need not be established
(4) For greater certainty, in proceedings under sections 74.01 and 74.02, it is not necessary to establish that
(a) any person was deceived or misled;
(b) any member of the public to whom the representation was made was within Canada; or
(c) the representation was made in a place to which the public had access.
Marginal note:General impression to be considered
(5) In proceedings under sections 74.01 and 74.02, the general impression conveyed by a representation as well as its literal meaning shall be taken into account in determining whether or not the person who made the representation engaged in the reviewable conduct.
Marginal note:1999, c. 2, s. 22
424. (1) The portion of subsection 74.1(1) of the French version of the Act before paragraph (a) is replaced by the following:
Marginal note:Décision et ordonnance
74.1 (1) Le tribunal qui conclut, à la suite d’une demande du commissaire, qu’une personne a ou a eu un comportement susceptible d’examen visé à la présente partie peut ordonner à celle-ci :
Marginal note:1999, c. 2, s. 22
(2) Subsection 74.1(1) of the Act is amended by striking out “and” at the end of paragraph (b) and by replacing paragraph (c) with the following:
(c) to pay an administrative monetary penalty, in any manner that the court specifies, in an amount not exceeding
(i) in the case of an individual, $750,000 and, for each subsequent order, $1,000,000, or
(ii) in the case of a corporation, $10,000,000 and, for each subsequent order, $15,000,000; and
(d) in the case of conduct that is reviewable under paragraph 74.01(1)(a), to pay an amount, not exceeding the total of the amounts paid to the person for the products in respect of which the conduct was engaged in, to be distributed among the persons to whom the products were sold — except wholesalers, retailers or other distributors, to the extent that they have resold or distributed the products — in any manner that the court considers appropriate.
Marginal note:1999, c. 2, s. 22
(3) Subsections 74.1(3) and (4) of the Act are replaced by the following:
Marginal note:Saving
(3) No order may be made against a person under paragraph (1)(b), (c) or (d) if the person establishes that the person exercised due diligence to prevent the reviewable conduct from occurring.
Marginal note:Purpose of order
(4) The terms of an order made against a person under paragraph (1)(b), (c) or (d) shall be determined with a view to promoting conduct by that person that is in conformity with the purposes of this Part and not with a view to punishment.
Marginal note:1999, c. 2, s. 22
(4) Paragraphs 74.1(5)(f) to (h) of the Act are replaced by the following:
(f) the effect on competition in the relevant market;
(g) the gross revenue from sales affected by the conduct;
(h) the financial position of the person against whom the order is made;
(i) the history of compliance with this Act by the person against whom the order is made;
(j) any decision of the court in relation to an application for an order under paragraph (1)(d);
(k) any other amounts paid or ordered to be paid by the person against whom the order is made as a refund or as restitution or other compensation in respect of the conduct; and
(l) any other relevant factor.
(5) Section 74.1 of the Act is amended by adding the following after subsection (6):
Marginal note:Amounts already paid
(7) In determining an amount to be paid under paragraph (1)(d), the court shall take into account any other amounts paid or ordered to be paid by the person against whom the order is made as a refund or as restitution or other compensation in respect of the products.
Marginal note:Implementation of the order
(8) The court may specify in an order made under paragraph (1)(d) any terms that it considers necessary for the order’s implementation, including terms
(a) specifying how the payment is to be administered;
(b) respecting the appointment of an administrator to administer the payment and specifying the terms of administration;
(c) requiring the person against whom the order is made to pay the administrative costs related to the payment as well as the fees to be paid to an administrator;
(d) requiring that potential claimants be notified in the time and manner specified by the court;
(e) specifying the time and manner for making claims;
(f) specifying the conditions for the eligibility of claimants, including conditions relating to the return of the products to the person against whom the order is made; and
(g) providing for the manner in which, and the terms on which, any amount of the payment that remains unclaimed or undistributed is to be dealt with.
Marginal note:Variation of terms
(9) On application by the Commissioner or the person against whom the order is made, the court may vary any term that is specified under subsection (8).
425. The Act is amended by adding the following after section 74.11:
Marginal note:Interim injunction
74.111 (1) If, on application by the Commissioner, a court finds a strong prima facie case that a person is engaging in or has engaged in conduct that is reviewable under paragraph 74.01(1)(a), and the court is satisfied that the person owns or has possession or control of articles within the jurisdiction of the court and is disposing of or is likely to dispose of them by any means, and that the disposal of the articles will substantially impair the enforceability of an order made under paragraph 74.1(1)(d), the court may issue an interim injunction forbidding the person or any other person from disposing of or otherwise dealing with the articles, other than in the manner and on the terms specified in the injunction.
Marginal note:Statement to be included
(2) Any application for an injunction under subsection (1) shall include a statement that the Commissioner has applied for an order under paragraph 74.1(1)(d), or that the Commissioner intends to apply for an order under that paragraph if the Commissioner applies for an order under paragraph 74.1(1)(a).
Marginal note:Duration
(3) Subject to subsection (6), the injunction has effect, or may be extended on application by the Commissioner, for any period that the court considers sufficient to meet the circumstances of the case.
Marginal note:Notice of application by Commissioner
(4) Subject to subsection (5), at least 48 hours’ notice of an application referred to in subsection (1) or (3) shall be given by or on behalf of the Commissioner to the person in respect of whom the injunction or extension is sought.
Marginal note:Ex parte application
(5) The court may proceed ex parte with an application made under subsection (1) if it is satisfied that subsection (4) cannot reasonably be complied with or where the urgency of the situation is such that service of the notice in accordance with subsection (4) might defeat the purpose of the injunction or would otherwise not be in the public interest.
Marginal note:Duration of ex parte injunction
(6) An injunction issued ex parte has effect for the period that is specified in it, not exceeding seven days unless, on further application made on notice as provided in subsection (4), the court extends the injunction for any additional period that it considers sufficient.
Marginal note:Submissions to set aside
(7) On application of the person against whom an ex parte injunction is made, the court may make an order setting aside the injunction or varying it subject to any conditions that it considers appropriate.
Marginal note:Duty of Commissioner
(8) If an injunction issued under this section is in effect, the Commissioner shall proceed as expeditiously as possible to complete any inquiry under section 10 arising out of the conduct in respect of which the injunction was issued.
Marginal note:Definitions
(9) The following definitions apply in this section.
“dispose”
« disposer »
“dispose”, in relation to an article, includes removing it from the jurisdiction of the court, depleting its value, leasing it to another person or creating any security interest in it.
“security interest”
« garantie »
“security interest” means any interest or right in property that secures payment or performance of an obligation and includes an interest or right created by or arising out of a debenture, mortgage, hypothec, lien, pledge, charge, security, deemed or actual trust, assignment or encumbrance of any kind whatever, however or whenever arising, created, deemed to arise or otherwise provided for.
Marginal note:R.S., c. 19 (2nd Supp.), s. 45; 1999, c. 2, par. 37(x)
426. Section 76 of the Act and the heading before it are replaced by the following:
Price Maintenance
Marginal note:Price maintenance
76. (1) On application by the Commissioner or a person granted leave under section 103.1, the Tribunal may make an order under subsection (2) if the Tribunal finds that
(a) a person referred to in subsection (3) directly or indirectly
(i) by agreement, threat, promise or any like means, has influenced upward, or has discouraged the reduction of, the price at which the person’s customer or any other person to whom the product comes for resale supplies or offers to supply or advertises a product within Canada, or
(ii) has refused to supply a product to or has otherwise discriminated against any person or class of persons engaged in business in Canada because of the low pricing policy of that other person or class of persons; and
(b) the conduct has had, is having or is likely to have an adverse effect on competition in a market.
Marginal note:Order
(2) The Tribunal may make an order prohibiting the person referred to in subsection (3) from continuing to engage in the conduct referred to in paragraph (1)(a) or requiring them to accept another person as a customer within a specified time on usual trade terms.
Marginal note:Persons subject to order
(3) An order may be made under subsection (2) against a person who
(a) is engaged in the business of producing or supplying a product;
(b) extends credit by way of credit cards or is otherwise engaged in a business that relates to credit cards; or
(c) has the exclusive rights and privileges conferred by a patent, trade-mark, copyright, registered industrial design or registered integrated circuit topography.
Marginal note:Where no order may be made
(4) No order may be made under subsection (2) if the person referred to in subsection (3) and the customer or other person referred to in subparagraph (1)(a)(i) or (ii) are principal and agent or mandator and mandatary, or are affiliated corporations or directors, agents, mandataries, officers or employees of
(a) the same corporation, partnership or sole proprietorship; or
(b) corporations, partnerships or sole proprietorships that are affiliated.
Marginal note:Suggested retail price
(5) For the purposes of this section, a suggestion by a producer or supplier of a product of a resale price or minimum resale price for the product, however arrived at, is proof that the person to whom the suggestion is made is influenced in accordance with the suggestion, in the absence of proof that the producer or supplier, in so doing, also made it clear to the person that they were under no obligation to accept the suggestion and would in no way suffer in their business relations with the producer or supplier or with any other person if they failed to accept the suggestion.
Marginal note:Advertised price
(6) For the purposes of this section, the publication by a producer or supplier of a product, other than a retailer, of an advertisement that mentions a resale price for the product is proof that the producer or supplier is influencing upward the selling price of any person to whom the product comes for resale, unless the price is expressed in a way that makes it clear to any person whose attention the advertisement comes to that the product may be sold at a lower price.
Marginal note:Exception
(7) Subsections (5) and (6) do not apply to a price that is affixed or applied to a product or its package or container.
Marginal note:Refusal to supply
(8) If, on application by the Commissioner or a person granted leave under section 103.1, the Tribunal finds that any person, by agreement, threat, promise or any like means, has induced a supplier, whether within or outside Canada, as a condition of doing business with the supplier, to refuse to supply a product to a particular person or class of persons because of the low pricing policy of that person or class of persons, and that the conduct of inducement has had, is having or is likely to have an adverse effect on competition in a market, the Tribunal may make an order prohibiting the person from continuing to engage in the conduct or requiring the person to do business with the supplier on usual trade terms.
Marginal note:Where no order may be made
(9) No order may be made under subsection (2) in respect of conduct referred to in subparagraph (1)(a)(ii) if the Tribunal is satisfied that the person or class of persons referred to in that subparagraph, in respect of products supplied by the person referred to in subsection (3),
(a) was making a practice of using the products as loss leaders, that is to say, not for the purpose of making a profit on those products but for purposes of advertising;
(b) was making a practice of using the products not for the purpose of selling them at a profit but for the purpose of attracting customers in the hope of selling them other products;
(c) was making a practice of engaging in misleading advertising; or
(d) made a practice of not providing the level of servicing that purchasers of the products might reasonably expect.
Marginal note:Inferences
(10) In considering an application by a person granted leave under section 103.1, the Tribunal may not draw any inference from the fact that the Commissioner has or has not taken any action in respect of the matter raised by the application.
Marginal note:Where proceedings commenced under section 45, 49, 79 or 90.1
(11) No application may be made under this section against a person on the basis of facts that are the same or substantially the same as the facts on the basis of which
(a) proceedings have been commenced against that person under section 45 or 49; or
(b) an order against that person is sought under section 79 or 90.1.
Definition of “trade terms”
(12) For the purposes of this section, “trade terms” means terms in respect of payment, units of purchase and reasonable technical and servicing requirements.
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