Competition Act (R.S.C., 1985, c. C-34)

Marginal note:Consent agreement

• 74.12 (1) The Commissioner and a person in respect of whom the Commissioner has applied or may apply for an order under this Part may sign a consent agreement.

• Marginal note:Terms of consent agreement

  (2) The consent agreement shall be based on terms that could be the subject of an order of a court against that person, and may include other terms, whether or not they could be imposed by the court.

• Marginal note:Registration

  (3) The consent agreement may be filed with the court for immediate registration.

• Marginal note:Effect of registration

  (4) Upon registration of the consent agreement, the proceedings, if any, are terminated and the consent agreement has the same force and effect, and proceedings may be taken, as if it were an order of the court.

Marginal note:Rescission or variation of consent agreement or order

74.13 The court may rescind or vary a consent agreement that it has registered or an order that it has made under this Part, on application by the Commissioner or the person who consented to the agreement, or the person against whom the order was made, if the court finds that

• (a) the circumstances that led to the making of the agreement or order have changed and, in the circumstances that exist at the time the application is made, the agreement or order would not have been made or would have been ineffective in achieving its intended purpose; or

• (b) the Commissioner and the person who consented to the agreement have consented to an alternative agreement or the Commissioner and the person against whom the order was made have consented to an alternative order.

Marginal note:Evidence

74.14 In determining whether or not to make an order under this Part, the court shall not exclude from consideration any evidence by reason only that it might be evidence in respect of an offence under this Act or in respect of which another order could be made by the court under this Act.

Marginal note:Unpaid monetary penalty

74.15 The amount of an administrative monetary penalty imposed on a person under paragraph 74.1(1)(c) is a debt due to Her Majesty in right of Canada and may be recovered as such from that person in a court of competent jurisdiction.

Marginal note:Where proceedings commenced under section 52 or 52.01

74.16 No application may be made under this Part against a person on the basis of facts that are the same or substantially the same as the facts on the basis of which proceedings have been commenced against that person under section 52 or 52.01.

Rules of Procedure

Marginal note:Power of courts

74.17 The rules committee of the Federal Court, or a superior court of a province, may make rules respecting the procedure for the disposition of applications by that court under this Part.

Appeals

Marginal note:Appeal to Federal Court of Appeal

• 74.18 (1) An appeal may be brought in the Federal Court of Appeal from any decision or order made under this Part, or from a refusal to make an order, by the Tribunal or the Federal Court.

• Marginal note:Appeal to provincial court of appeal

  (2) An appeal may be brought in the court of appeal of a province from any decision or order made under this Part, or from a refusal to make an order, by a superior court of the province.

• Marginal note:Disposition of appeal

  (3) Where the Federal Court of Appeal or the court of appeal of the province allows an appeal under this section, it may quash the decision or order appealed from, refer the matter back to the court appealed from or make any decision or order that, in its opinion, that court should have made.

Marginal note:Appeal on question of fact

74.19 An appeal on a question of fact from a decision or order made under this Part may be brought only with the leave of the Federal Court of Appeal or the court of appeal of the province, as the case may be.

PART VIIIMatters Reviewable by Tribunal

Restrictive Trade Practices

Refusal to Deal

Marginal note:Jurisdiction of Tribunal where refusal to deal

• 75 (1) Where, on application by the Commissioner or a person granted leave under section 103.1, the Tribunal finds that

  • (a) a person is substantially affected in his business or is precluded from carrying on business due to his inability to obtain adequate supplies of a product anywhere in a market on usual trade terms,

  • (b) the person referred to in paragraph (a) is unable to obtain adequate supplies of the product because of insufficient competition among suppliers of the product in the market,

  • (c) the person referred to in paragraph (a) 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, and

  • (e) the refusal to deal is having or is likely to have an adverse effect on competition in a market,

  the Tribunal may order that one or more suppliers of the product in the market accept the person as a customer within a specified time on usual trade terms unless, within the specified time, in the case of an article, 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.

• Marginal note:When article is a separate product

  (2) For the purposes of this section, an article is not a separate product in a market only because it is differentiated from other articles in its class by a trademark, proprietary name or the like, unless the article so differentiated occupies such a dominant position in that market as to substantially affect the ability of a person to carry on business in that class of articles unless that person has access to the article so differentiated.

• Marginal note:Definition of trade terms

  (3) For the purposes of this section, the expression trade terms means terms in respect of payment, units of purchase and reasonable technical and servicing requirements.

• Marginal note:Inferences

  (4) 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.

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, certificate of supplementary protection issued under the Patent Act, trademark, copyright, registered industrial design or registered integrated circuit topography.

• Marginal note:When 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

  • (a) principal and agent or mandator and mandatary;

  • (b) an entity and an individual who controls it or affiliated entities; or

  • (c) directors, agents, mandataries, officers or employees of the same entity or of entities 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.

• Marginal note: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.

Exclusive Dealing, Tied Selling and Market Restriction

Marginal note:Definitions

• 77 (1) For the purposes of this section,

  exclusive dealing

  exclusive dealing means

  • (a) any practice whereby a supplier of a product, as a condition of supplying the product to a customer, requires that customer to

    • (i) deal only or primarily in products supplied by or designated by the supplier or the supplier’s nominee, or

    • (ii) refrain from dealing in a specified class or kind of product except as supplied by the supplier or the nominee, and

  • (b) any practice whereby a supplier of a product induces a customer to meet a condition set out in subparagraph (a)(i) or (ii) by offering to supply the product to the customer on more favourable terms or conditions if the customer agrees to meet the condition set out in either of those subparagraphs; (exclusivité)

  market restriction

  market restriction means any practice whereby a supplier of a product, as a condition of supplying the product to a customer, requires that customer to supply any product only in a defined market, or exacts a penalty of any kind from the customer if he supplies any product outside a defined market; (limitation du marché)

  tied selling

  tied selling means

  • (a) any practice whereby a supplier of a product, as a condition of supplying the product (the “tying” product) to a customer, requires that customer to

    • (i) acquire any other product from the supplier or the supplier’s nominee, or

    • (ii) refrain from using or distributing, in conjunction with the tying product, another product that is not of a brand or manufacture designated by the supplier or the nominee, and

  • (b) any practice whereby a supplier of a product induces a customer to meet a condition set out in subparagraph (a)(i) or (ii) by offering to supply the tying product to the customer on more favourable terms or conditions if the customer agrees to meet the condition set out in either of those subparagraphs. (ventes liées)

• Marginal note:Exclusive dealing and tied selling

  (2) Where, on application by the Commissioner or a person granted leave under section 103.1, the Tribunal finds that exclusive dealing or tied selling, because it is engaged in by a major supplier of a product in a market or because it is widespread in a market, is likely to

  • (a) impede entry into or expansion of a firm in a market,

  • (b) impede introduction of a product into or expansion of sales of a product in a market, or

  • (c) have any other exclusionary effect in a market,

  with the result that competition is or is likely to be lessened substantially, the Tribunal may make an order directed to all or any of the suppliers against whom an order is sought prohibiting them from continuing to engage in that exclusive dealing or tied selling and containing any other requirement that, in its opinion, is necessary to overcome the effects thereof in the market or to restore or stimulate competition in the market.

• Marginal note:Market restriction

  (3) Where, on application by the Commissioner or a person granted leave under section 103.1, the Tribunal finds that market restriction, because it is engaged in by a major supplier of a product or because it is widespread in relation to a product, is likely to substantially lessen competition in relation to the product, the Tribunal may make an order directed to all or any of the suppliers against whom an order is sought prohibiting them from continuing to engage in market restriction and containing any other requirement that, in its opinion, is necessary to restore or stimulate competition in relation to the product.

• Marginal note:Damage awards

  (3.1) For greater certainty, the Tribunal may not make an award of damages under this section to a person granted leave under subsection 103.1(7).

• Marginal note:Where no order to be made and limitation on application of order

  (4) The Tribunal shall not make an order under this section where, in its opinion,

  • (a) exclusive dealing or market restriction is or will be engaged in only for a reasonable period of time to facilitate entry of a new supplier of a product into a market or of a new product into a market,

  • (b) tied selling that is engaged in is reasonable having regard to the technological relationship between or among the products to which it applies, or

  • (c) tied selling that is engaged in by a person in the business of lending money is for the purpose of better securing loans made by that person and is reasonably necessary for that purpose,

  No order made under this section applies in respect of exclusive dealing, market restriction or tied selling between or among entities that are affiliated.

• Marginal note:If entity affiliated

  (5) For the purposes of subsection (4), in addition to the circumstances specified in paragraph 2(2)(a) or (b) under which two entities are affiliated, an entity is affiliated with another entity in respect of any agreement between them in which one of them grants to the other the right to use a trademark or trade name to identify the business of the grantee, if

  • (a) the business is related to the sale or distribution, in accordance with a marketing plan or system prescribed substantially by the grantor, of a multiplicity of products obtained from competing sources of supply and a multiplicity of suppliers; and

  • (b) no one product dominates the business.

• Marginal note:When persons deemed to be affiliated

  (6) For the purposes of subsection (4) in its application to market restriction, where there is an agreement whereby one person (the “first” person) supplies or causes to be supplied to another person (the “second” person) an ingredient or ingredients that the second person processes by the addition of labour and material into an article of food or drink that he then sells in association with a trademark that the first person owns or in respect of which the first person is a registered user, the first person and the second person are deemed, in respect of the agreement, to be affiliated.

• Marginal note:Inferences

  (7) 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.