Recent remarks by Canada’s Interim Commissioner, John Pecman, reinforce the view that the Bureau is pursuing all avenues available to it under the Competition Act to fulfill its mandate of investigating and challenging civil and/or criminal anti-competitive practices. In this respect, the interim Commissioner noted three of the Bureau’s priorities going forward:
- focused enforcement and strategic regulatory interventions designed to benefit Canadians;
- applying Canada's competition laws in a transparent and predictable manner; and
- developing trust through enhanced collaboration
In addition to these priorities, Mr. Pecman noted that the Bureau would assist in providing clarification on the Act’s price maintenance provisions, issues that have arisen in the context of electronic document production, the Bureau’s leniency program for those that cooperate in criminal investigations, and investigative procedures.
The Use of Section 11 Investigative Orders
In his speech, Mr. Pecman emphasized that the Bureau will use “all of the tools that Parliament has given to us in the Competition Act to deliver on our mandate”. In terms of investigations under formal inquiry, including non-merger, civil matters, the Commissioner indicated that the Bureau will not refrain from using the powers available to it through section 11 of the Act. This provision allows the Commissioner to compel attendance of a person who has, or is likely to have, information that is relevant to an inquiry, so that they may be examined on oath or solemn affirmation, or to compel production of records or a written return.
While the Bureau has the power to utilize section 11 in respect of both civil and criminal matters under inquiry the Commissioner noted that in some recent investigations it has opted to use Voluntary Information Requests (VIRs) in place of court orders. However, Mr. Pecman expressed concern that parties may be using the VIR process for strategic, uncooperative purposes, resulting in unnecessary delays in the Bureau’s investigations. In order to combat what the Bureau views as “inefficient, incomplete and untimely” responses associated with VIRs, Commissioner Pecman declared that, “going forward, the Bureau's first course of action in obtaining information from the target of a formal inquiry in non-merger cases will be, for all but exceptional cases, obtaining a legally binding section 11 order from the Court.”
The Commissioner clarified that the use of section 11 orders is not meant to be punitive, but rather is designed to aid investigations by providing a clear framework, timelines and set of rules that benefit both parties in the investigation.
In addition to commenting on section 11 orders, the Commissioner expressed a commitment to transparency designed to provide the legal community, consumers and businesses with greater certainty in their dealings with the Bureau. Practically speaking, this means continued publication of guidance material, and, in respect of merger review, position statements for complex deals. Such statements will continue to be published where there is a high level of complexity and importance of the issues raised, a strong interest in the case, or where the review utilized new analytical tools, findings or outcomes. The online mergers register, which lists completed merger reviews updated on a monthly basis, will see its first year of operation this February.
Recent Enforcement Measures
The Commissioner commented on some of the Bureau’s recent enforcement measures, stating that he was particularly proud of the investigation into the retail gas sector in Quebec, which was one of the largest in the agency’s history. The investigation resulted in criminal price-fixing charges being laid against 39 individuals and 15 companies, with total fines exceeding CDN $3 million and terms of imprisonment totaling 54 months. The Commissioner also stated that he expects a decision from the Competition Tribunal soon on the civil case alleging anti-competitive price maintenance practices by Visa and Mastercard.
In terms of non-legislative enforcement measures, Commissioner Pecman highlighted the Bureau’s collaboration with its law enforcement partners in Quebec, specifically the Unité Permanente Anticorruption or UPAC. Collaboration between the Bureau and UPAC was integral to uncovering a complex collusion scheme involving contracts for infrastructure projects in the Saint-Jean-sur-Richelieu region in June, 2012. This joint operation resulted in 77 charges being laid against 11 individuals and 9 companies in the construction industry.