INST Committee Report

That the Government of Canada provide the Competition Bureau with the resources necessary to ensure the effective enforcement of the Competition Act.

That the Competition Tribunal develop and articulate a policy to allocate costs in a fair and equitable manner having regard to the resources available to the parties to the proceeding. That such a policy consider the merits of exempting small businesses from liability for costs in Tribunal proceedings.

That the Competition Tribunal, in consultation with the Tribunal-Bar Liaison Committee, continue its ongoing review of procedures with the aim of creating an adjudicative system that will ensure "just results" in an expeditious and timely manner. Such procedures should aim at reducing parties’ costs, as well as the time required, in bringing contested cases to a conclusion while, at the same time, continuing to ensure that due consideration is given to principles of procedural fairness and the appearance of justice.

That the Government of Canada amend the Competition Act and the Competition Tribunal Act to extend the private right of action in the case of abuse of dominant position (section 79) and to permit the Competition Tribunal to award damages in private action proceedings (sections 75, 77 and 79).

That the Government of Canada amend section 124.2 of the Competition Act to permit a party to a contested proceeding under Part VII.1 or VIII to refer to the Tribunal a question of law, jurisdiction, practice or procedure in relation to the application or interpretation of Part VII.1 or VIII.

That the Government of Canada amend section 12 of the Competition Tribunal Act to permit questions of law to be considered by all the members sitting in a proceeding.

That the Government of Canada amend section 13 of the Competition Tribunal Act to require that an appeal from any order or decision of the Tribunal may only be brought with leave of the Federal Court of Appeal.

That the Government of Canada amend the Competition Act to create a two-track approach for agreements between competitors. The first track would retain the conspiracy provision (section 45) for agreements that are strictly devised to restrict competition directly through raising prices or indirectly through output restrictions or market sharing, such as customer or territorial assignments, as well as both group customer or supplier boycotts. The second track would deal with any other type of agreement between competitors in which restrictions on competition are ancillary to the agreement’s main or broader purpose.

That the Government of Canada repeal the term "unduly" from the conspiracy provision (section 45) of the Competition Act.

That the Government of Canada amend the Competition Act by adding paragraphs to section 45 that would provide for exceptions based on factors such as: (1) the restraint is part of a broader agreement that is likely to generate efficiencies or foster innovation; and (2) the restraint is reasonably necessary to achieve these efficiencies or cultivate innovation. The onus of proof, based on the "beyond a reasonable doubt" standard, for such an exception would be placed on the proponents of the agreement.

That the Government of Canada amend the Competition Act to add a paragraph to section 45 that would prohibit any proceedings under subsection 45(1) against any person who is subject to an order sought under any of the relevant reviewable sections of the Competition Act covering essentially the same conduct.

That the Government of Canada amend the civilly reviewable section of the Competition Act to add a new strategic alliance section for the review of a horizontal agreement between competitors. Such a section should, as much as possible, afford the same treatment as the merger review provisions (sections 92 through 96), and should authorize the Commissioner of Competition to apply to the Competition Tribunal with respect to such agreements that have or are likely to have the effect of "preventing or lessening competition substantially" in a market.

That the Government of Canada ensure that its newly proposed civilly reviewable section dealing with strategic alliances, as found in recommendation 16, apply to agreements between competing buyers and sellers, but not to vertical agreements such as those subject to review under sections 61 and 77 of the Competition Act.

That the Competition Bureau establish, publish and disseminate enforcement guidelines on conspiracies, strategic alliances and other horizontal agreements between competitors that are consistent with recommendations 12 through 17 that would amend the Competition Act.

That the Government of Canada amend the Competition Act to allow for a voluntary pre-clearance system that would screen out competitively benign or pro-competitive horizontal agreements between competitors from criminal liability pursuant to subsection 45(1) of the Act. That the Competition Bureau levy a fee on application for a pre-clearance certificate that would be based on cost-recovery principles similar to that of a merger review. That a reasonable time limit upon application for a certificate be imposed on the Commissioner of Competition, failing which the applicant is deemed to have been granted a certificate.

That the Government of Canada amend the Competition Act to allow individuals who have been refused a pre-clearance certificate for a horizontal agreement between competitors by the Commissioner of Competition be given standing before the Competition Tribunal for a fair hearing on the proposed agreement. That such standing be granted only if the agreement remains proposed and has not been completed.

That the Government of Canada repeal paragraphs 50(1)(b) and 50(1)(c) of the Competition Act and amend the Act to include predatory pricing as an anticompetitive act within the abuse of dominant position provision (section 79).

That the Government of Canada repeal the price maintenance provision (section 61) of the Competition Act. In order to distinguish between those practices that are anticompetitive and those that are competitively benign or pro-competitive, that the Government of Canada amend the Competition Act so that: (1) price maintenance practices among competitors (i.e., horizontal price maintenance), whether manufacturers or distributors, be added to the conspiracy provision (section 45); and (2) price maintenance agreements between a manufacturer and its distributors (i.e., vertical price maintenance) be reviewed under the abuse of dominant position provision (section 79).

That the Government of Canada repeal the price discrimination provisions (paragraph 50(1)(a) and section 51) of the Competition Act and include these prohibitions under the abuse of dominant position provision (section 79). This prohibition should govern all types of products, including articles and services, and all types of transactions, not just sales.

That the Government of Canada amend the Competition Act by deleting paragraph 79(1)(a).

That the Competition Bureau revise its Enforcement Guidelines on the Abuse of Dominance Provisions in order to be consistent with the addition of the anticompetitive pricing practices (paragraphs 50(1)(a) and 50(1)(c) and section 61) to section 79 of the Competition Act.

That the Government of Canada amend section 110 of the Competition Act to require parties to any merger (i.e., asset or share acquisitions) involving gross revenues from sales of $50 million in or from Canada to notify the Commissioner of Competition of the transaction.

That the Government of Canada amend the Competition Act to have a parliamentary review of the notification thresholds contained in sections 109 and 110 within five years and every five years thereafter to ensure optimal enforcement of the Competition Act.

That the Government of Canada immediately establish an independent task force of experts to study the role that efficiencies should play in all civilly reviewable sections of the Competition Act, and that the report of the task force be submitted to a parliamentary committee for further study within six months of the tabling of this report.

That the Competition Bureau issue an interpretation guideline clarifying whether section 75 would apply to the circumstance where a supplier in a market characterized by supply shortages could selectively ration its available supply in such a manner as to discriminate against independent retailers.