Fall Economic Statement Implementation Act, 2023 (S.C. 2024, c. 15)
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Assented to 2024-06-20
PART 5Various Measures (continued)
DIVISION 6Measures Related to Competition (continued)
R.S., c. C-34; R.S., c. 29 (2nd Supp.), s. 19Competition Act (continued)
240 Section 74.11 of the Act is replaced by the following:
Marginal note:Temporary order
74.11 (1) On application by the Commissioner or a person granted leave under section 103.1, a court may order a person who it appears to the court is engaging in conduct that is reviewable under this Part not to engage in that conduct or substantially similar reviewable conduct if it appears to the court that
(a) serious harm is likely to ensue unless the order is issued; and
(b) the balance of convenience favours issuing the order.
Marginal note:Temporary order — supply of a product
(1.1) On application by the Commissioner or a person granted leave under section 103.1, a court may order any person named in the application to refrain from supplying to another person a product that it appears to the court is or is likely to be used to engage in conduct that is reviewable under this Part, or to do any act or thing that it appears to the court could prevent a person from engaging in such conduct, if it appears to the court that
(a) serious harm is likely to ensue unless the order is issued; and
(b) the balance of convenience favours issuing the order.
Marginal note:Duration
(2) Subject to subsection (5), an order made under subsection (1) or (1.1) has effect, or may be extended on application by the Commissioner or a person granted leave under section 103.1, for any period that the court considers sufficient to meet the circumstances of the case.
Marginal note:Notice of application
(3) Subject to subsection (4), at least 48 hours’ notice of an application referred to in subsection (1), (1.1) or (2) must be given by or on behalf of the Commissioner or the person granted leave under section 103.1 to the person in respect of whom the order or extension is sought.
Marginal note:Ex parte application
(4) The court may proceed ex parte with an application made by the Commissioner under subsection (1) or (1.1) if it is satisfied that subsection (3) cannot reasonably be complied with or that the urgency of the situation is such that service of notice in accordance with subsection (3) would not be in the public interest.
Marginal note:Duration of ex parte order
(5) An order issued ex parte as the result of an application made by the Commissioner under subsection (1) or (1.1) has effect for the period that is specified in it, not exceeding seven days unless, on further application made by the Commissioner on notice as provided in subsection (3), the court extends the order for any additional period that it considers necessary and sufficient.
Marginal note:Duty of Commissioner
(6) If an order issued under this section as the result of an application made by the Commissioner under subsection (1) or (1.1) is in effect, the Commissioner must proceed as expeditiously as possible to complete the inquiry under section 10 arising out of the conduct in respect of which the order was issued.
241 (1) Subsections 74.111(1) to (6) of the Act are replaced by the following:
Marginal note:Interim injunction
74.111 (1) If, on application by the Commissioner or a person granted leave under section 103.1, 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) must include a statement that the Commissioner or the person granted leave under section 103.1 has applied for an order under paragraph 74.1(1)(d), or that the Commissioner or the person intends to apply for an order under that paragraph if the Commissioner or the person 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 or the person granted leave under section 103.1, for any period that the court considers sufficient to meet the circumstances of the case.
Marginal note:Notice of application
(4) Subject to subsection (5), at least 48 hours’ notice of an application referred to in subsection (1) or (3) must be given by or on behalf of the Commissioner or the person granted leave under section 103.1 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 by the Commissioner under subsection (1) if it is satisfied that subsection (4) cannot reasonably be complied with or that 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 as the result of an application made by the Commissioner under subsection (1) has effect for the period that is specified in it, not exceeding seven days unless, on further application made by the Commissioner on notice as provided in subsection (4), the court extends the injunction for any additional period that it considers sufficient.
(2) Subsection 74.111(8) of the Act is replaced by the following:
Marginal note:Duty of Commissioner
(8) If an injunction issued under this section as the result of an application made by the Commissioner under subsection (1) is in effect, the Commissioner must 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.
242 The Act is amended by adding the following after section 74.12:
Marginal note:Failure to comply with consent agreement
74.121 (1) If, on application by the Commissioner, the court determines that a person, without good and sufficient cause, the proof of which lies on the person, has failed to comply or is likely to fail to comply with a consent agreement registered under subsection 74.12(3), the court may
(a) prohibit the person from doing anything that, in the court’s opinion, may constitute a failure to comply with the agreement;
(b) order the person to take any action that is necessary to comply with the agreement;
(c) order the person to pay, in any manner that the court specifies, an administrative monetary penalty in an amount not exceeding $10,000 for each day on which they fail to comply with the agreement, determined by the court after taking into account any evidence of the following:
(i) the person’s financial position,
(ii) the person’s history of compliance with this Act,
(iii) the duration of the period of non-compliance, and
(iv) any other relevant factor; or
(d) grant any other relief that the court considers appropriate.
Marginal note:Purpose of order
(2) The terms of an order under paragraph (1)(c) are to be determined with a view to promoting conduct by the person that is in conformity with the purposes of this Act and not with a view to punishment.
Marginal note:Unpaid monetary penalty
(3) The administrative monetary penalty imposed under paragraph (1)(c) is a debt due to His Majesty in right of Canada and may be recovered as such from the person in a court of competent jurisdiction.
243 The Act is amended by adding the following after section 74.13:
Marginal note:Consent agreement — parties to a private action
74.131 (1) If a person granted leave under section 103.1 makes an application to the Tribunal for an order under section 74.1 and the terms of the order are agreed to by the person in respect of whom the order is sought and consistent with the provisions of this Act, a consent agreement may be filed with the Tribunal for registration.
Marginal note:Notice to Commissioner
(2) On filing the consent agreement with the Tribunal for registration, the parties shall serve a copy of it on the Commissioner without delay.
Marginal note:Publication
(3) The consent agreement must be published without delay in the Canada Gazette.
Marginal note:Registration
(4) The consent agreement must be registered within 30 days after its publication unless a third party makes an application to the Tribunal before then to cancel the agreement or replace it with an order of the Tribunal.
Marginal note:Effect of registration
(5) On registration, the consent agreement has the same force and effect, and proceedings may be taken, as if it were an order of the Tribunal.
Marginal note:Commissioner may intervene
(6) On application by the Commissioner, the Tribunal may vary or rescind a registered consent agreement if it finds that the agreement is not in conformity with the purposes of this Part.
Marginal note:Notice
(7) The Commissioner must give notice of an application under subsection (6) to the parties to the consent agreement.
Marginal note:Failure to comply with consent agreement
74.132 (1) If, on application by the Commissioner, the Tribunal determines that a person, without good and sufficient cause, the proof of which lies on the person, has failed to comply or is likely to fail to comply with a consent agreement registered under subsection 74.131(4), the Tribunal may
(a) prohibit the person from doing anything that, in the Tribunal’s opinion, may constitute a failure to comply with the agreement;
(b) order the person to take any action that is necessary to comply with the agreement;
(c) order the person to pay, in any manner that the Tribunal specifies, an administrative monetary penalty in an amount not exceeding $10,000 for each day on which they fail to comply with the agreement, determined by the Tribunal after taking into account any evidence of the following:
(i) the person’s financial position,
(ii) the person’s history of compliance with this Act,
(iii) the duration of the period of non-compliance, and
(iv) any other relevant factor; or
(d) grant any other relief that the Tribunal considers appropriate.
Marginal note:Purpose of order
(2) The terms of an order under paragraph (1)(c) are to be determined with a view to promoting conduct by the person that is in conformity with the purposes of this Act and not with a view to punishment.
Marginal note:Unpaid monetary penalty
(3) The administrative monetary penalty imposed under paragraph (1)(c) is a debt due to His Majesty in right of Canada and may be recovered as such from the person in a court of competent jurisdiction.
Marginal note:Service of agreement on Commissioner
74.133 (1) If a person granted leave under section 103.1 makes an application to the Tribunal for an order under section 74.1 and the person discontinues the application by reason of having entered into an agreement with any other person, the parties to the agreement must serve a copy of it on the Commissioner within 10 days after the day on which it is entered into.
Marginal note:Commissioner may intervene
(2) On application by the Commissioner, the Tribunal may vary or rescind the agreement if it finds that the agreement is not in conformity with the purposes of this Part.
Marginal note:Notice
(3) The Commissioner must give notice of an application under subsection (2) to the parties to the agreement.
Marginal note:Failure to serve
74.134 (1) If, on application by the Commissioner, the Tribunal determines that a person, without good and sufficient cause, the proof of which lies on the person, has failed to serve a copy of an agreement on the Commissioner in accordance with subsection 74.133(1), the Tribunal may
(a) order the person to serve the Commissioner with a copy of the agreement;
(b) issue an interim order prohibiting any person from doing anything that, in the Tribunal’s opinion, may constitute or be directed toward the implementation of the agreement;
(c) order the person to pay, in any manner that the Tribunal specifies, an administrative monetary penalty in an amount not exceeding $10,000 for each day on which they fail to serve a copy of the agreement on the Commissioner, determined by the Tribunal after taking into account any evidence of the following:
(i) the person’s financial position,
(ii) the person’s history of compliance with this Act,
(iii) the duration of the period of non-compliance, and
(iv) any other relevant factor; or
(d) grant any other relief that the Tribunal considers appropriate.
Marginal note:Purpose of order
(2) The terms of an order under paragraph (1)(c) are to be determined with a view to promoting conduct by the person that is in conformity with the purposes of this Act and not with a view to punishment.
Marginal note:Unpaid monetary penalty
(3) The administrative monetary penalty imposed under paragraph (1)(c) is a debt due to His Majesty in right of Canada and may be recovered as such from the person in a court of competent jurisdiction.
244 (1) Subsection 75(1) of the Act is replaced by the following:
Marginal note:Jurisdiction of Tribunal — cases of refusal to deal
75 (1) The Tribunal may, on application by the Commissioner or a person granted leave under section 103.1, order one or more suppliers of a product, including a means of diagnosis or repair, in a market to accept a person as a customer, or to make the means of diagnosis or repair available to a person, within a specified period and on the terms that the Tribunal considers appropriate if the Tribunal finds that
(a) the person is substantially affected in the whole or part of their business or is precluded from carrying on business due to their inability to obtain adequate supplies of the product anywhere in the market on usual trade terms;
(b) the person is unable to obtain adequate supplies of the product because of insufficient competition among suppliers of the product in the market;
(c) the person is willing and able to meet the usual trade terms of the supplier or suppliers of the product;
(d) the product is in ample supply or, in the case of a means of diagnosis or repair, can be readily supplied; and
(e) the refusal to deal is having or is likely to have an adverse effect on competition in a market.
Marginal note:Non-application
(1.1) An order made under subsection (1) does not apply in the case of an article if, within the specified time, any customs duties on the article are removed, reduced or remitted and the effect of the removal, reduction or remission is to place the person on an equal footing with other persons who are able to obtain adequate supplies of the article in Canada.
(2) Section 75 of the Act is amended by adding the following after subsection (1.1):
Marginal note:Additional order — person granted leave
(1.2) If the Tribunal makes an order under subsection (1) as the result of an application by a person granted leave under section 103.1, it may also order any supplier in respect of whom the order applies to pay an amount, not exceeding the value of the benefit derived from the conduct that is the subject of the order, to be distributed among the applicant and any other person affected by the conduct, in any manner that the Tribunal considers appropriate.
Marginal note:Implementation of the order
(1.3) The Tribunal may specify in an order made under subsection (1.2) any term that it considers necessary for the order’s implementation, including a term
(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 Tribunal;
(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.
(3) Subsection 75(3) of the Act is replaced by the following:
Marginal note:Trade secrets
(2.1) Nothing in this section is to be interpreted as requiring the disclosure of any information that is a trade secret.
Marginal note:Definitions
(3) The following definitions apply in this section.
- means of diagnosis or repair
means of diagnosis or repair includes diagnostic, maintenance, repair and calibration information, technical updates, diagnostic software or tools and any related documentation and service parts. (moyen de diagnostic ou de réparation)
- trade terms
trade terms means terms in respect of payment, units of purchase and reasonable technical and servicing requirements. (conditions de commerce)
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