Although 2010 lacked the drama of the previous year (which, among other things, witnessed major changes to Canada’s competition legislation), as we discuss in this bulletin, there were a number of highly significant developments during 2010, particularly on the enforcement front. Below you will find discussions of enforcement and policy developments during the year, including the successful negotiation by the Commissioner of Competition ("Commissioner"), Melanie Aitken, of large fines in a number of international price fixing cartels, and the initiation of two major cases before the Competition Tribunal under the abuse of dominance and price maintenance provisions of the Competition Act. These developments were followed early in 2011 by the Commissioner’s challenge of the merger between CCS Corporation and Complete Environmental Inc. This latter development is notable on a number of accounts including the fact that the Commissioner is seeking, among other things, dissolution of the transaction: sellers beware! And, of course, under the Investment Canada Act we saw the now famous disallowance of BHP Billiton’s ("BHP") proposed acquisition of Potash Corp.
New Merger Policy and Guidance Documents
In October 2010, the Competition Bureau (“Bureau”) released the following documents to update previous guidance pertaining to procedural matters for merger review: Fees and Service Standards Policy for Mergers and Merger-Related Matters; Fees and Service Standards Handbook for Mergers and Merger-Related Matters; and Procedures Guide for Notifiable Transactions and Advance Ruling Certificates under the Competition Act. Most notably, the documents set out the Bureau’s new non-statutory complexity designations and service standard periods (i.e. the maximum amount of time in which the Bureau strives to make a substantive decision with respect to a proposed merger). Generally, the service standard period commences the day a complete filing is received by the Bureau, provided the Bureau has sufficient information to assign a complexity designation. The “non-complex” classification and its service standard period of 14 days remains unchanged. The previous “complex” and “very complex” classifications, with service standard periods of 10 weeks and 5 months, respectively, have been replaced by a single “complex” classification, which has a service standard period of 45 days, or where a supplementary information request (“SIR”) is issued, 30 days from the day the SIR is complied with.
Although the service standard periods have decreased for transactions that would have previously been classified “complex” or “very complex” (i.e. reduced from 10 weeks and five months, respectively), in its guidance documents and consistent with past practice, the Bureau retains discretion with respect to its determination of when sufficient information has been received to enable it to make a complexity designation and consequently commence a service standard period – it is not uncommon for the Bureau to ask for information that is additional to the information provided in an initial filing before communicating a complexity designation. It remains to be seen whether the shorter service standard periods will actually result in the review of complex mergers in less time than was the case in the past.
Amended Notifiable Transactions Regulations come into Force
The amended Notifiable Transactions Regulations came into force on February 2, 2010. Amendments to the regulations were necessary following the amendments to the pre-merger notification provisions of the Competition Act in March 2009, which, among other things, replaced the “short form” and “long form” notification information requirements with a single notification form. Notably, one of the requirements in the regulations is that a notification must include studies, surveys, analyses and reports prepared or received by an officer or director of the notifying party for the purposes of assessing the proposed transaction. This requirement is similar to item 4(c) of the U.S. Hart-Scott-Rodino Notification and Report Form.
In 2010, the Bureau secured consent agreements in respect of the following mergers:
- acquisition of Alcon, Inc. by Novartis AG (involved the divestiture of assets and associated licences relating to certain ophthalmic products);
- merger between Teva Pharmaceutical Industries Ltd. and the Merckle Group (carrying on business as ratiopharm (sic)) (involved the divestiture of assets and associated licences relating to certain pain-relief drugs);
- merger between IESI-BFC Ltd. and Waste Service Inc. (involved the divestiture of commercial waste collection assets); and
- merger between Ticketmaster Entertainment, Inc. and Live Nation, Inc. (involved the divestiture of a Ticketmaster subsidiary, licensing of Ticketmaster’s ticketing software to a competitor, and an agreement by Ticketmaster to refrain from retaliating against venue owners who use competing ticketing or promotional services).
Also, in June 2010, after roughly 18 months of investigation, the Bureau and the U.S. Federal Trade Commission (“FTC”) completed their examination of the March 2008 acquisition of AH Marks Holding Limited by Nufarm Limited. The investigation was commenced some time after the transaction had closed. The transaction was also examined by the U.K. Office of Fair Trading and the Australian Competition & Consumer Commission. Working in cooperation with the FTC, the Bureau concluded that a separate remedy for Canada was not necessary; instead, to resolve competition concerns in Canada, the Bureau relied on commitments made to it by Nufarm and a consent decree Nufarm had with the FTC. The remedies obtained by the FTC required Nufarm to sell rights and assets associated with two herbicides to competitors and restructure supply agreements with two other companies to allow them to fully compete in respect of certain herbicides.
Just prior to going to press, the Bureau filed a Notice of Application with the Competition Tribunal in respect of CCS Corporation's acquisition of Complete Environmental Inc., alleging that the transaction is likely to prevent competition in the disposal of hazardous waste produced at oil and gas fields in North-eastern British Columbia. Noteworthy aspects of the matter include:
- The fact that the transaction was not notifiable: the vast majority of the Bureau’s enforcement pertains to notifiable transactions. This is a reminder that the Competition Act is relevant to non-notifiable mergers.
- The Bureau is seeking, among other things, dissolution of the transaction. This is a reminder that the risk to sellers in respect of completed mergers is not merely theoretical.
- The Bureau did not seek a s. 100 (pre-closing) injunction but rather accepted a hold-separate undertaking, even though it was introduced to the transaction prior to closing. The Bureau generally refuses to permit closing into a hold-separate. The Bureau's decision not to pursue a s. 100 injunction may have been based on concerns about the strength of its case for an injunction having regard to the decision in the Labatt-Lakeport merger and given that the merging parties had offered a hold-separate.
Revisiting Merger Enforcement Guidelines
In September, the Bureau announced that it would hold consultations with the public to obtain input on whether its 2004 Merger Enforcement Guidelines (“MEGs”) should be revised, having regard to legal and economic developments since the 2004 MEGs and the recent publication of revised Horizontal Merger Guidelines by antitrust authorities in the United States. The Bureau asked for comments by December 31, 2010. A Discussion Paper for the consultations can be found on the Bureau's website.
Pre-Merger Notification Size-of-Transaction Threshold Increased
Pre-merger notification under the Competition Act is required where both size-of-parties and size-of-transaction thresholds are exceeded. The size-of-parties threshold is exceeded where the parties, including their respective affiliates, together have assets in Canada or gross revenues from sales in, from or into Canada that exceed $400 million. The size-of-transaction threshold varies with the type of transaction involved (e.g. acquisition of assets, acquisition of shares, amalgamation, etc.), but generally includes a monetary threshold in terms of the gross book value of assets in Canada or the value of gross revenues from sales in or from Canada generated from those assets. The size-of-transaction threshold for 2011 is $73 million (up from $70 million for 2010).
INVESTMENT CANADA ACT
On November 3, 2010, the Canadian Minister of Industry announced that he was unable to approve BHP's proposed acquisition of Potash Corp. on the basis that BHP had not adequately demonstrated that the investment would be of "net benefit to Canada" as required by the Investment Canada Act. While BHP was given an additional 30 days to submit further representations and undertakings in an attempt to persuade the Minister to change his mind, BHP instead elected to withdraw its bid for Potash Corp. Because of BHP’s decision, the Minister was no longer legally obligated to issue reasons for his decision although, at the time of his announcement, he had stated that he intended to do so.
The BHP/Potash decision does not appear to herald a change to the Canadian government’s generally pro-foreign investment policy. This is only the second publicly announced blocking of an investment under the Investment Canada Act since it came into force in 1985. Regardless as to whether the Minister’s decision was motivated, as some columnists have suggested, by political expediency or was simply, as the Minister indicated, the result of BHP’s inability to meet the “net benefit to Canada” test, it seems clear that, in certain unique circumstances, obtaining Investment Canada Act clearance can be a material condition to successfully closing a transaction. Because of this, foreign investors proposing acquisitions of Canadian businesses should, early on in the acquisition process, identify any sensitivity, political or otherwise, that might impact on their ability to obtain the required clearance and then consider how they intend to demonstrate “net benefit to Canada” as required by the Investment Canada Act.
The Minister of Industry’s 2009 Federal Court application to obtain an order to remedy the alleged failure by U.S. Steel to comply with certain undertakings that it had given in 2007 in connection with its acquisition of Stelco Inc. continues to move slowly through the judicial process. U.S. Steel’s constitutional challenge concerning the validity of sections 39 and 40 of the Investment Canada Act was unsuccessful. U.S. Steel then moved to appeal the decision to grant intervener status to a union representing Stelco employees and a prospective purchaser of the Stelco facility. This appeal was dismissed in December 2010. Everything to date suggests that a quick resolution to this legal dispute is unlikely. In the meantime, foreign investors would be wise to pay closer attention to the substance of the undertakings that they are submitting in support of applications for approval under the Investment Canada Act by properly conditioning those undertakings to take into consideration events beyond their control that could frustrate or delay performance of those undertakings.
Amazon.com, Apple and Canadian Heritage Policy Review
Following on the heels of his April 2010 decision under the Investment Canada Act to permit Amazon.com to open a “fulfillment centre” warehouse in Canada, the Minister of Canadian Heritage and Official Languages (who is responsible under the Investment Canada Act for reviewing foreign investments in the cultural industry sector) announced that he was also undertaking a review of existing foreign investment policies and programs, most of which have been in place for many years. The review will, in part, seek to determine whether the existing book publishing policy, most recently revised in 1992, is to continue or to be revised with a view to providing healthy competition in the book publishing, distribution and retail sectors of the industry and to contribute to the broader government objective of insuring that Canadian cultural content is created and accessible in Canada and abroad. Given the Minister’s December 2010 approval of an investment proposal by Apple Canada to establish iBookstore Canada, it would be reasonable to expect that some relaxation in the foreign investment cultural policy will come out of this review.
WTO Investor Threshold Increased
The determination of whether an investment that is covered by the Investment Canada Act is subject to Ministerial review as opposed to being merely subject to notification (which can be filed up to 30-days following implementation of the investment) depends on whether an applicable monetary threshold is exceeded, based on the gross book value of assets of the Canadian business. The highest threshold that may apply is the threshold for WTO investors, which is adjusted annually to reflect changes in GDP. Lower thresholds apply if the investor is not a WTO investor or if the Canadian business being acquired involves a cultural business. The WTO investor threshold for 2011 is $312 million, up from the 2010 threshold of $299 million.
CARTELS AND OTHER CRIMINAL PROHIBITIONS
2010 saw a number of charges laid and convictions through guilty pleas, including the following:
- Criminal charges were laid against 20 individuals and three companies accused of fixing the retail price of gasoline in an alleged domestic cartel in various cities and towns in the Province of Quebec.
- Criminal charges were laid against eight companies and five individuals accused of rigging bids for private sector ventilation contracts for residential highrise buildings in the Montreal area.
- Panasonic Corporation and Embraco North America Inc. pleaded guilty, with fines totaling $3 million, for fixing the price of hermetic refrigeration compressors sold in Canada.
- Solvay Chemicals Inc. pleaded guilty and was fined $2.5 million for its role in fixing the price of hydrogen peroxide sold in Canada.
- Cargolux Airlines International S.A. pleaded guilty and was fined $2.5 million for its role in an air cargo cartel affecting Canada. Cargolux's penalty brings the total fines in the Bureau's air cargo investigation to more than $17 million. In 2009, Air France, KLM, Martinair, Qantas, and British Airways each pleaded guilty to fixing air cargo surcharges for shipments on certain routes from Canada.
- Tassimco Technologies Canada Inc. pleaded guilty to a charge of bid-rigging for a contract to provide traffic signals to the City of Quebec.
The European Court of Justice released an important decision, Akzo Nobel, confirming that communications between in-house counsel and their internal clients are not protected under European law by legal professional privilege, otherwise known in Canada as solicitor-client privilege. Akzo Nobel has global implications with respect to how legal advice is sought and received in the area of antitrust/competition law. Companies, in conjunction with their in-house and external lawyers, need to carefully structure their global legal communications in order to maximize the application of privilege.
New Bureau guidance included the following:
- The Commissioner and the Director of Public Prosecutions signed a Memorandum of Understanding, which sets out the guiding principles of the relationship between the Bureau and the Public Prosecution Service of Canada and outlines each organization's respective roles and responsibilities at the investigative and prosecution stages of a case (May 14, 2010).
- The Bureau released a revised bulletin on Corporate Compliance Programs, which describes the Bureau's approach to programs designed to ensure compliance with the Competition Act, the Consumer Packaging and Labelling Act, the Textile Labelling Act and the Precious Metals Marking Act. (September 27, 2010).
- The Bureau released its final Leniency Program bulletin, together with an FAQ document providing specific information on particular questions arising under the program (September 29, 2010).
Dual-Track for Agreements Among Competitors Comes into Force
The Bill C-10 amendments to the Competition Act that establish a dual-track (criminal/civil) approach to agreements between competitors came into force on March 12, 2010. Cartel-type agreements that fix prices, allocate markets and/or restrict output will be prosecuted under a criminal per se provision, while other agreements between competitors (e.g. legitimate joint ventures or strategic alliances) that are likely to substantially prevent or lessen competition may be reviewed by the Competition Tribunal under a civil provision on an application of the Commissioner. The Bill C-10 amendments also established an ancillary restraints defence, and incorporate by reference the common law regulated conduct defence to the per se cartel provision.
ABUSE OF DOMINANCE AND OTHER REVIEWABLE PRACTICES
The Commissioner filed two applications with the Competition Tribunal in 2010 for relief under the civil restrictive trade practices provisions of the Competition Act. This represents a substantial increase in enforcement action by the Bureau under the restrictive trade practices provisions (although both applications followed lengthy investigations) and demonstrates a willingness by the Commissioner to pursue complex cases involving challenging issues that are unaddressed by the existence jurisprudence.
In February 2010, following a three-year investigation, the Commissioner initiated a proceeding against the Canadian Real Estate Association ("CREA") under the abuse of dominance provision (section 79). The Commissioner alleged that by adopting and enforcing certain rules restricting access to the multiple listing service (MLS) system and trademarks, CREA had, through its members, lessened or prevented competition substantially in the market for residential real estate services in Canada. The Commissioner took issue with the minimum service requirements imposed on all brokers as a condition of access to the MLS system and trademarks, including the prohibition against offering listing-only (“Mere Posting”) services. The proceeding was concluded by a registered consent agreement filed with the Competition Tribunal on October 25, 2010. Under the Consent Agreement, which has a term of 10 years, CREA has agreed not to adopt, maintain or enforce any rules that prevent members from providing or offering to provide “Mere Posting” services or that discriminate against members that offer such services. CREA has also agreed not to license MLS trademarks to any real estate board member that adopts or enforces rules that are inconsistent with the requirements of the consent agreement. The case reconfirms the Bureau’s willingness to challenge rules restricting access to proprietary networks, whether or not protected by intellectual property rights.
At the end of 2010, the Commissioner filed an application under the new civil resale price maintenance provision (section 76) seeking to strike down Visa and MasterCard rules that prevent merchants from imposing a surcharge on credit card payments or discriminate between customers based on the credit card submitted for payment, and that require merchants to honour all Visa and MasterCard cards, including cards with higher fees. The Bureau alleges that these rules result in higher prices for consumers, as merchants are forced to pass on higher Visa and MasterCard fees than would otherwise prevail. The application follows an investigation launched in April 2009 in response to complaints filed by merchants and their associations. Interestingly, although the investigation was originally pursued under section 79 (abuse of dominance), the application is based solely on price maintenance. This may be because of the lower competitive impact threshold under the price maintenance provision (which requires an adverse effect on competition rather than substantial lessening or prevention of competition), as well as the fact that joint dominance need not be established.
Also of note was the Bureau's announcement in February 2010 that it would not consent to a variance of the Interac consent order to permit Interac to restructure as a for-profit association, although it would be willing to consider other changes to Interac's structure to provide it with greater flexibility to respond to competitive entry. According to the Bureau's press release, the decision was based on: Interac's continued dominance; the effectiveness of the not-for-profit restriction in preventing potentially anti-competitive conduct; and the existence of alternative measures that would allow Interac to remain competitive without a for-profit structure. The Commissioner's rejection of a for-profit structure is at odds with the usual premise that market-based profit-maximization is the preferred market structure.
The Commissioner also published in 2010 a revised "Regulated" Conduct bulletin. The revised bulletin addresses the new criminal and civil conspiracy provisions that came into force in March 2010.
MARKETING AND ADVERTISING
The Bureau has continued to challenge Canadian advertising practices that it considers to contravene the Competition Act. In 2010 the Bureau took action:
in respect of a telecommunications company to stop what the Bureau viewed as misleading advertising with respect to claims asserting the superior performance of its discount cell phone and text services over those provided by new entrant competitors; in respect of a distributor regarding representations made in the sale and promotion of hot tubs and spas which conveyed, in the view of the Bureau, the impression that the products and/or their insulation were eligible for certification by the ENERGY STAR Program; in respect of two different retailers in connection with their issuance of savings cards on the sale of merchandise, for the failure, in the Bureau’s view, to adequately disclose conditions to redeem such savings cards; and resulting in 450,000 textile articles being re–labelled and over 250 web-pages corrected to ensure that textile articles derived from bamboo are accurately labelled and advertised. CLASS ACTIONS AND OTHER LITIGATION
Private Actions for Damages
In 2010, courts continued to exhibit a fondness for expanding the availability of civil remedies to plaintiffs in competition-related litigation. As with the developments in the previous year, this was most notable in the class action certification area.
Competition Class Action Certification
In Irving Paper Ltd., et al. v. Atofina Chemicals, et al., leave to appeal was denied in a 2009 decision that certified a class of direct and indirect purchasers of hydrogen peroxide in Canada. Although leave to appeal was denied, the court disagreed with the certification judge's decision on a number of points relating to the assessment of expert opinion evidence tendered on these types of issues relating to evidence of common impact and the methodology for assessing damages, but nevertheless concluded that there was no reason to doubt the correctness of the order of the lower court granting certification. The "vigorous analysis" that the defendants had urged upon the court was rejected. The court found that the certification judge is not required to engage in any merits analysis of the evidence including the expert evidence. Rather, the expert evidence must demonstrate a "viable methodology" for proving loss on a class-wide basis.
The same month as the decision in Irving Paper, the Supreme Court of Canada dismissed an application for leave to appeal in Pro-Sys Consultants Ltd. v. Infineon Technologies AG. In Pro-Sys, the Court of Appeal reversed a lower court decision which had refused to certify a class of direct and indirect purchasers of DRAM products. In reasoning similar to the Ontario court in Irving Paper, the court of appeal found that only a minimum evidentiary basis was necessary to establish harm on a class-wide basis and that only a "plausible" methodology needs to be presented by expert opinion evidence at that stage.
The Irving Paper and Pro-Sys decisions have served to substantially lower the threshold for the acceptance by Canadian courts of class action treatment for actions involving competition law violations. For example, in Quizno's Canada Restaurant Corporation v. 2038724 Ontario Ltd., the plaintiff alleged that franchisees were charged non-competitive prices for supplies that they were obliged to pay pursuant to their franchise agreements. The Ontario Court of Appeal overturned the decision of the lower court which had accepted the defendant's claims that the action lacked a workable method for calculating what the franchisees would have paid in the absence of any competition related offence. The Court of Appeal reasoned that only a demonstration of a "reasonable likelihood" that damages could be proven on an aggregate basis was necessary to attain class certification status. Similar outcomes favourable to plaintiffs were made in Pro-Sys v. Microsoftand Sun-Ripe Products Ltd. v. Archer Daniels Midland Company.
Misleading Representation Claims
The results for plaintiffs were decidedly mixed in respect of allegations of misleading representation contrary to section 52 of the Competition Act. In Bell Aliant v. Rogers Communications Inc., the New Brunswick Court of the Queen's Bench granted Bell Aliant an injunction relating to various claims by the defendant respecting its internet service being, among other things, the "fastest and most reliable speed". The court held there is a serious issue to be tried as to whether the defendant's representations were false and misleading and contrary to section 52 of the Competition Act.
In contrast, in Singer v. Schering-Plough Canada Inc., the court refused to certify the proposed class action against sunscreen manufacturers who were accused of false advertising and labelling contrary to section 52 of the Competition Act. The court determined that there were many evidentiary issues that had not been addressed by the plaintiff notwithstanding that the threshold for certification in Ontario is notably not a high one. In this action, it was alleged that the defendants were misrepresenting that their products provide equal protection against harmful UVA and UVB rays of the sun. It was alleged that the packaging, labelling and advertising of the sunscreen products were false and misleading. As the court noted, to make out a claim for a civil remedy pursuant to the Competition Act, a plaintiff must show a breach of section 52 and loss or damage suffered as a result of that breach. In Singer, the court determined that the plaintiff had failed to make out a causal connection between the breach and the alleged damages suffered by the plaintiff. It held that a consumer cannot recover damages, in the abstract, by merely proving that a manufacturer made a false and misleading representation to the public.