FINA Committee Report

Clause 3

That Bill C-56, in Clause 3, be amended by replacing line 26 on page 3 to line 2 on page 4 with the following:

“10.1 (1) The Commissioner may, after consulting the Minister, conduct an inquiry into the state of competition in a market or industry if the Commissioner is of the opinion that it is in the public interest to do so.

(2) The Minister may direct the Commissioner to conduct an inquiry into the state of competition in a market or industry if the Minister is of the opinion that it is in the public interest that such an inquiry be conducted. Before making the direction, the Minister must consult the Commissioner to determine whether the inquiry would be feasible, including with regard to its cost.

(3) If, after the consultation referred to in subsection (1) or (2), it is decided to proceed with the inquiry, the Commissioner”

New Clause 7.1

That Bill C-56 be amended by adding after line 16 on page 5 the following new clause:

“7.1 Subsection 78(1) of the Act is amended by striking out “and” at the end of paragraph (i), by adding “and” at the end of paragraph (j) and by adding the following after paragraph (j):

(k) directly or indirectly imposing excessive and unfair selling prices.”

That Bill C-56 be amended by adding after line 16 on page 5 the following:

“7.1 (1) Subsections 79(1) and (2) of the Act are replaced by the following:

79 (1) On application by the Commissioner or a person granted leave under section 103.1, if the Tribunal finds that one or more persons substantially or completely control a class or species of business throughout Canada or any area of Canada, it may make an order prohibiting the person or persons from engaging in a practice or conduct if it finds that the person or persons have engaged in or are engaging in

(a) a practice of anti-competitive acts; or

(b) conduct

(i) that had, is having or is likely to have the effect of preventing or lessening competition substantially in a market in which the person or persons have a plausible competitive interest, and

(ii) the effect is not a result of superior competitive performance.

(2) If, on an application under subsection (1), the Tribunal finds that a practice of anti-competitive acts amounts to conduct that has had or is having the effect of preventing or lessening competition substantially in a market in which the person or persons have a plausible competitive interest and that an order under subsection (1) is not likely to restore competition in that market, the Tribunal may, in addition to or in lieu of making an order under subsection (1), make an order directing any or all persons against whom an order is sought to take actions, including the divestiture of assets or shares, that are reasonable and necessary to overcome the effects of the practice in that market.

(2) The portion of subsection 79(3.1) of the Act before paragraph (b) is replaced by the following:

(3.1) If the Tribunal finds that a person has engaged in or is engaging in a practice of anti–competitive acts that amounts to conduct that has had or is having the effect of preventing or lessening competition substantially in a market in which the person has a plausible competitive interest and it makes an order against the person under subsection (1) or (2), it may also order them to pay, in any manner that it specifies, an administrative monetary penalty in an amount not exceeding the greater of

(a) $25,000,000 and, for each subsequent order under either of those subsections, an amount not exceeding $35,000,000, and

(3) Subsection 79(4) of the Act is replaced by the following:

(4) In determining, for the purposes of subsections (1) and (2), whether conduct has had, is having or is likely to have the effect of preventing or lessening competition substantially in a market, the Tribunal may consider

(a) the effect of the conduct on barriers to entry in the market, including network effects;

(b) the effect of the conduct on price or non-price competition, including quality, choice or consumer privacy;

(c) the nature and extent of change and innovation in a relevant market; and

(d) any other factor that is relevant to competition in the market that is or would be affected by the conduct.

(4) Subsection 79(6) of the Act is replaced by the following:

(6) No application may be made under this section in respect of a practice of anti-competitive acts or conduct more than three years after the practice or conduct has ceased.”

Clause 8

That Bill C-56, in Clause 8, be amended by adding after line 23 on page 5 the following:

“(1.1) Subsections 90.1(4) to (6) of the Act are repealed.”