On September 11, the Competition Bureau announced that it had laid criminal charges against Progressive Waste Solutions Ltd. and its subsidiary, BFI Canada Inc., alleging that Progressive had violated the terms of a consent agreement it had entered into in 2010. The consent agreement was reached in respect of a merger between IESC-BFC Ltd. and Waste Services Inc. (now known together as Progressive), two commercial waste collection companies. The Bureau concluded at the time that the merger would result in a substantial lessening or prevention of competition in the waste collection market in several Canadian cities, and entered into a consent agreement with the merging parties which required them to divest certain assets in the affected markets. The consent agreement also provided that the parties could not attempt to reacquire the customers of the companies who purchased the divested assets for one year following the divestitures. In October and December of 2010, the Bureau approved divestiture buyers. Now, the Bureau alleges that Progressive violated the terms of the agreement by soliciting and reacquiring a customer whose contract had been divested, and then providing a false declaration of compliance and failing promptly to notify the Bureau of the breach.
Contravention of a consent agreement is a criminal offence under section 66 of the Competition Act. If the Bureau’s allegations are borne out in court, Progressive could be liable on summary conviction to a fine of up to $25,000. The charges show the Bureau’s aggressive approach to monitoring and enforcing its consent agreements. In the misleading advertising context, in 2011, the Bureau required Beiersdorf Canada Inc. to take action to correct a public statement which the Bureau found to be inconsistent with the terms of a consent agreement entered into with Beiersdorf earlier that year. This week’s charges show that the Bureau will continue to monitor compliance with consent agreements across all of its enforcement branches, and may pursue criminal charges when circumstances warrant.