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

Marginal note:Deduction from administrative monetary penalty

• 74.101 (1) If a court determines that a person is engaging in or has engaged in conduct that is reviewable under section 74.011 and orders the person to pay an administrative monetary penalty under paragraph 74.1(1)(c), then the court shall deduct from the amount of the penalty that it determines any amount that the person

  • (a) has been ordered to pay under paragraph 51(1)(b) of An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act in respect of the same conduct; or

  • (b) has agreed in a settlement agreement to pay on account of amounts referred to in paragraph 51(1)(b) of that Act in respect of the same conduct.

• Marginal note:Restitution and interim injunction

  (2) If a court determines that a person is engaging in or has engaged in conduct that is reviewable under subsection 74.011(2), it may order the person to pay an amount under paragraph 74.1(1)(d), and may issue an interim injunction under section 74.111, as if the conduct were conduct that is reviewable under paragraph 74.01(1)(a).

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.

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.

• 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 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.

• Marginal note:Definitions

  (9) The following definitions apply in this section.

  dispose

  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. (disposer)

  security interest

  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. (garantie)

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: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.

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: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.