On September 11, 2012, the Competition Bureau announced that it laid criminal charges under section 66 of the Competition Act against Progressive Waste Solutions Ltd. and its subsidiary BFI Canada Inc. for “multiple breaches” of a June 2010 consent agreement with the Bureau. The consent agreement resulted from the 2010 merger of IESI-BFC Ltd. and Waste Services Inc. (now know collectively as “Progressive”) and was intended to remedy concerns about a substantial lessening or prevention of competition in four cities and one county across Canada. Under the terms of the agreement, the parties were required to divest certain assets and customer contracts, and were prohibited from soliciting or reacquiring divested customers for a period of one year. If the parties became aware of a material breach of the agreement, they were to promptly notify the Bureau.
The Bureau alleges that Progressive solicited and reacquired a divested customer, provided a false declaration of compliance with the consent agreement, and failed to promptly notify the Bureau of the breach. If convicted on a summary basis, Progressive could face fines of up to $25,000 per count. Progressive has denied the allegations and representatives have claimed that the company will “vigorously defend this matter.”
Regardless of the outcome of this dispute, the case highlights the importance of ensuring mechanisms are in place within a company that is the subject of a consent agreement to manage any compliance obligations and flag any potential problems. The case is also noteworthy for the aggressive response taken by the Bureau by the alleged failure to abide by the consent agreement. A non-criminal route is available to sanction a failure to follow a consent agreement. However, the Commissioner, in choosing the criminal route, intended to send “a strong signal to business that breaching a consent agreement…is an extremely serious matter and will not be tolerated.”