Budget Implementation Act, 2009 (S.C. 2009, c. 2)
Full Document:
Assented to 2009-03-12
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.
Marginal note:2000, c. 15, s. 13(2)
427. (1) Subsection 78(1) of the Act is amended by adding the word “and” at the end of paragraph (h) and by repealing paragraphs (j) and (k).
Marginal note:2000, c. 15, s. 13(3)
(2) Subsection 78(2) of the Act is repealed.
Marginal note:2002, c. 16, s. 11.4
428. (1) Subsections 79(3.1) to (3.3) of the Act are replaced by the following:
Marginal note:Administrative monetary penalty
(3.1) If the Tribunal makes an order against a person under subsection (1) or (2), it may also order them to pay, in any manner that the Tribunal specifies, an administrative monetary penalty in an amount not exceeding $10,000,000 and, for each subsequent order under either of those subsections, an amount not exceeding $15,000,000.
Marginal note:Aggravating or mitigating factors
(3.2) In determining the amount of an administrative monetary penalty, the Tribunal shall take into account any evidence of the following:
(a) the effect on competition in the relevant market;
(b) the gross revenue from sales affected by the practice;
(c) any actual or anticipated profits affected by the practice;
(d) the financial position of the person against whom the order is made;
(e) the history of compliance with this Act by the person against whom the order is made; and
(f) any other relevant factor.
Marginal note:Purpose of order
(3.3) The purpose of an order made against a person under subsection (3.1) is to promote practices by that person that are in conformity with the purposes of this section and not to punish that person.
Marginal note:R.S., c. 19 (2nd Supp.), s. 45
(2) Subsection 79(7) of the Act is replaced by the following:
Marginal note:Where proceedings commenced under section 45, 49, 76, 90.1 or 92
(7) 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 by the Commissioner under section 76, 90.1 or 92.
Marginal note:R.S., c. 19 (2nd Supp.), s. 45
429. Section 90 of the Act is replaced by the following:
Marginal note:Non-application of sections 45, 77 and 90.1
90. Section 45, section 77 as it applies to exclusive dealing, and section 90.1 do not apply in respect of a specialization agreement, or any modification of such an agreement, that is registered.
Agreements or Arrangements that Prevent or Lessen Competition Substantially
Marginal note:Order
90.1 (1) If, on application by the Commissioner, the Tribunal finds that an agreement or arrangement — whether existing or proposed — between persons two or more of whom are competitors prevents or lessens, or is likely to prevent or lessen, competition substantially in a market, the Tribunal may make an order
(a) prohibiting any person — whether or not a party to the agreement or arrangement — from doing anything under the agreement or arrangement; or
(b) requiring any person — whether or not a party to the agreement or arrangement — with the consent of that person and the Commissioner, to take any other action.
Marginal note:Factors to be considered
(2) In deciding whether to make the finding referred to in subsection (1), the Tribunal may have regard to the following factors:
(a) the extent to which foreign products or foreign competitors provide or are likely to provide effective competition to the businesses of the parties to the agreement or arrangement;
(b) the extent to which acceptable substitutes for products supplied by the parties to the agreement or arrangement are or are likely to be available;
(c) any barriers to entry into the market, including
(i) tariff and non-tariff barriers to international trade,
(ii) interprovincial barriers to trade, and
(iii) regulatory control over entry;
(d) any effect of the agreement or arrangement on the barriers referred to in paragraph (c);
(e) the extent to which effective competition remains or would remain in the market;
(f) any removal of a vigorous and effective competitor that resulted from the agreement or arrangement, or any likelihood that the agreement or arrangement will or would result in the removal of such a competitor;
(g) the nature and extent of change and innovation in any relevant market; and
(h) any other factor that is relevant to competition in the market that is or would be affected by the agreement or arrangement.
Marginal note:Evidence
(3) For the purpose of subsections (1) and (2), the Tribunal shall not make the finding solely on the basis of evidence of concentration or market share.
Marginal note:Exception where gains in efficiency
(4) The Tribunal shall not make an order under subsection (1) if it finds that the agreement or arrangement has brought about or is likely to bring about gains in efficiency that will be greater than, and will offset, the effects of any prevention or lessening of competition that will result or is likely to result from the agreement or arrangement, and that the gains in efficiency would not have been attained if the order had been made or would not likely be attained if the order were made.
Marginal note:Restriction
(5) For the purposes of subsection (4), the Tribunal shall not find that the agreement or arrangement has brought about or is likely to bring about gains in efficiency by reason only of a redistribution of income between two or more persons.
Marginal note:Factors to be considered
(6) In deciding whether the agreement or arrangement is likely to bring about the gains in efficiency described in subsection (4), the Tribunal shall consider whether such gains will result in
(a) a significant increase in the real value of exports; or
(b) a significant substitution of domestic products for imported products.
Marginal note:Exception
(7) Subsection (1) does not apply if the agreement or arrangement is entered into, or would be entered into, only by companies each of which is, in respect of every one of the others, an affiliate.
Marginal note:Exception
(8) Subsection (1) does not apply if the agreement or arrangement relates only to the export of products from Canada, unless the agreement or arrangement
(a) has resulted in or is likely to result in a reduction or limitation of the real value of exports of a product;
(b) has restricted or is likely to restrict any person from entering into or expanding the business of exporting products from Canada; or
(c) has prevented or lessened or is likely to prevent or lessen competition substantially in the supply of services that facilitate the export of products from Canada.
Marginal note:Exception
(9) The Tribunal shall not make an order under subsection (1) in respect of
(a) an agreement or arrangement between federal financial institutions, as defined in subsection 49(3), in respect of which the Minister of Finance has certified to the Commissioner
(i) the names of the parties to the agreement or arrangement, and
(ii) the Minister of Finance’s request for or approval of the agreement or arrangement for the purposes of financial policy;
(b) an agreement or arrangement that constitutes a merger or proposed merger under the Bank Act, the Cooperative Credit Associations Act, the Insurance Companies Act or the Trust and Loan Companies Act in respect of which the Minister of Finance has certified to the Commissioner
(i) the names of the parties to the agreement or arrangement, and
(ii) the Minister of Finance’s opinion that the merger is in the public interest, or that it would be in the public interest, taking into account any terms and conditions that may be imposed under those Acts; or
(c) an agreement or arrangement that constitutes a merger or proposed merger approved under subsection 53.2(7) of the Canada Transportation Act in respect of which the Minister of Transport has certified to the Commissioner the names of the parties to the agreement or arrangement.
Marginal note:Where proceedings commenced under section 45, 49, 76, 79 or 92
(10) 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 by the Commissioner under section 76, 79 or 92.
Definition of “competitor”
(11) In subsection (1), “competitor” includes a person who it is reasonable to believe would be likely to compete with respect to a product in the absence of the agreement or arrangement.
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