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This enactment modernizes the Competition Act to respond to a
changing business and enforcement environment, by increasing
flexibility in the administration of the Act and efficiency in its
enforcement. The enactment
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(a) enacts new provisions to strengthen the enforcement action that
can be taken against deceptive telemarketing solicitations;
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(b) creates a non-criminal adjudicative mechanism with an im
proved range of remedies to deal with misleading advertising and
deceptive marketing practices;
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(c) revises the treatment of claims made about regular selling prices
to provide greater flexibility and clarity;
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(d) permits judicial authorization for interceptions of private
communications in relation to conspiracy, bid-rigging and deceptive
telemarketing;
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(e) modifies the administration of the merger notification process;
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(f) broadens the authority for the making of prohibitive orders to
include prescriptive terms, as a means of promoting compliance and
avoiding prosecution for less serious infractions; and
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(g) formalizes existing responsibilities in relation to the administra
tion and enforcement of certain labelling statutes.
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Clause 1: (1) The definition ``Director'' in subsection
2(1) reads as follows:
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``Director'' means the Director of Investigation and Research ap
pointed under subsection 7(1);
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(2) New.
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(3) The relevant portion of subsection 2(4) reads as
follows:
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(4) For the purposes of this Act,
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Clause 2: The relevant portion of subsection 5(2)
reads as follows:
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(2) For the purposes of this section, ``underwriting'' of a security
means the primary or secondary distribution of the security, in respect
of which distribution
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(a) a prospectus is required to be filed, accepted or otherwise
approved under or pursuant to a law enacted in Canada for the
supervision or regulation of trade in securities; or
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Clause 3: The headings before section 7 read as
follows:
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Clause 4: Subsections 7(1) and (2) read as follows:
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7. (1) The Governor in Council may appoint an officer to be known
as the Director of Investigation and Research.
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(2) The Director shall, before entering on his duties, take and
subscribe, before the Clerk of the Privy Council, an oath or solemn
affirmation, which shall be filed in the office of the Clerk, in the
following form:
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I do solemnly swear (or affirm) that I will faithfully, truly and impartial
ly, and to the best of my judgment, skill and ability, execute the powers
and trusts reposed in me as Director of Investigation and Research. (In
the case where an oath is taken add ''So help me God''.)
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Clause 5: Section 8 reads as follows:
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8. (1) One or more persons may be appointed Deputy Directors of
Investigation and Research, in the manner authorized by law.
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(2) The Governor in Council may authorize a Deputy Director to
exercise the powers and perform the duties of the Director whenever the
Director is absent or unable to act or whenever there is a vacancy in the
office of Director.
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(3) The Governor in Council may authorize any person to exercise
the powers and perform the duties of the Director whenever the Director
and the Deputy Directors are absent or unable to act or, if one or more
of those offices are vacant, whenever the holders of the other of those
offices are absent or unable to act.
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(4) The Director may authorize a Deputy Director to make inquiry
regarding any matter into which the Director has power to inquire, and
when so authorized a Deputy Director shall perform the duties and may
exercise the powers of the Director in respect of that matter.
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(5) The exercise, pursuant to this Act, of any of the powers or the
performance of any of the duties of the Director by a Deputy Director
or other person does not in any way limit, restrict or qualify the powers
or duties of the Director, either generally or with respect to any
particular matter.
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Clause 6: (1) The relevant portion of subsection 9(1)
reads as follows:
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9. (1) Any six persons resident in Canada who are not less than
eighteen years of age and who are of the opinion that
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(a) a person has contravened or failed to comply with an order made
pursuant to section 32, 33 or 34, or Part VIII,
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(b) grounds exist for the making of an order under Part VIII, or
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may apply to the Director for an inquiry into the matter.
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(2) The relevant portion of subsection 9(2) reads as
follows:
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(2) An application made under subsection (1) shall be accompanied
by a statement in the form of a solemn or statutory declaration showing
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(i) the alleged contravention or failure to comply,
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Clause 7: The relevant portion of subsection 10(1)
reads as follows:
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10. (1) The Director shall
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(b) whenever he believes on reasonable grounds that
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(i) a person has contravened or failed to comply with an order
made pursuant to section 32, 33 or 34, or Part VIII,
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(ii) grounds exist for the making of an order under Part VIII, or
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cause an inquiry to be made into all such matters as he considers neces
sary to inquire into with the view of determining the facts.
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Clause 8: The relevant portion of subsection 15(1)
reads as follows:
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15. (1) Where, on the ex parte application of the Director or the
authorized representative of the Director, a judge of a superior or county
court or of the Federal Court is satisfied by information on oath or
solemn affirmation
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(a) that there are reasonable grounds to believe that
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(i) a person has contravened or failed to comply with an order
made pursuant to section 32, 33 or 34, or Part VIII,
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(ii) grounds exist for the making of an order under Part VIII, or
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the judge may issue a warrant under his hand authorizing the Director
or any other person named in the warrant to
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(c) enter the premises, subject to such conditions as may be specified
in the warrant, and
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(d) search the premises for any such record or other thing and copy
it or seize it for examination or copying.
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Clause 9: The headings before section 25 read as
follows:
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Clause 10: (1) Subsection 33(1.1) is new. Subsection
33(1) reads as follows:
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33. (1) Where it appears to a court, on an application by or on behalf
of the Attorney General of Canada or the attorney general of a province,
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(a) that a person named in the application has done, is about to do or
is likely to do any act or thing constituting or directed toward the
commission of an offence under Part VI or section 74, and
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(b) that if the offence is committed or continued
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(i) injury to competition that cannot adequately be remedied
under any other provision of this Act will result, or
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(ii) a person is likely to suffer, from the commission of the
offence, damage for which he cannot adequately be compensated
under any other provision of this Act and that will be substantially
greater than any damage that a person named in the application
is likely to suffer from an injunction issued under this subsection
in the event that it is subsequently found that an offence under
Part VI or section 74 has not been committed, was not about to be
committed and was not likely to be committed,
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the court may, by order, issue an interim injunction forbidding any per
son named in the application from doing any act or thing that it appears
to the court may constitute or be directed toward the commission of an
offence, pending the commencement or completion of a proceeding un
der subsection 34(2) or a prosecution against the person.
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(2) Subsection 33(7) reads as follows:
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(7) A court may punish any person who contravenes or fails to
comply with an injunction issued by it under subsection (1) by a fine in
the discretion of the court or by imprisonment for a term not exceeding
two years.
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Clause 11: (1) Subsection 34(1) reads as follows:
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34. (1) Where a person has been convicted of an offence under Part
VI,
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(a) the court may at the time of the conviction, on the application of
the Attorney General of Canada or the attorney general of the
province, or
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(b) a superior court of criminal jurisdiction in the province may at
any time within three years thereafter, on proceedings commenced
by information of the Attorney General of Canada or the attorney
general of the province for the purposes of this section,
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and in addition to any other penalty imposed on the person convicted,
prohibit the continuation or repetition of the offence or the doing of any
act or thing by the person convicted or any other person directed toward
the continuation or repetition of the offence.
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(2) New.
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(3) Subsections 34(3) and (3.1) read as follows:
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(3) The Attorney General of Canada or the attorney general of the
province or any person against whom an order of prohibition or
dissolution is made may appeal against the order or a refusal to make an
order or the quashing of an order
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(a) from a superior court of criminal jurisdiction in the province to
the court of appeal of the province, or
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(b) from the Federal Court - Trial Division to the Federal Court of
Appeal,
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as the case may be, on any ground that involves a question of law or, if
leave to appeal is granted by the court appealed to within twenty-one
days after the judgment appealed from is pronounced or within such ex
tended time as the court appealed to or a judge thereof for special rea
sons allows, on any ground that appears to that court to be a sufficient
ground of appeal.
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(3.1) The Attorney General of Canada or the attorney general of the
province or any person against whom an order of prohibition or
dissolution is made may appeal against the order or a refusal to make an
order or the quashing of an order from the court of appeal of the
province or the Federal Court of Appeal, as the case may be, to the
Supreme Court of Canada on any ground that involves a question of law
or, if leave to appeal is granted by the Supreme Court, on any ground
that appears to that Court to be a sufficient ground of appeal.
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(4) Subsection 34(6) reads as follows:
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(6) A court may punish any person who contravenes or fails to
comply with a prohibition or direction made or given by it under this
section by a fine in the discretion of the court or by imprisonment for a
term not exceeding two years.
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Clause 12: (1) Subsections 52(1.1) and (2.1) are new.
Subsections 52(1) and (2) read as follows:
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52. (1) No person shall, for the purpose of promoting, directly or
indirectly, the supply or use of a product or for the purpose of
promoting, directly or indirectly, any business interest, by any means
whatever,
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(a) make a representation to the public that is false or misleading in
a material respect;
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(b) make a representation to the public in the form of a statement,
warranty or guarantee of the performance, efficacy or length of life
of a product that is not based on an adequate and proper test thereof,
the proof of which lies on the person making the representation;
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(c) make a representation to the public in a form that purports to be
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(i) a warranty or guarantee of a product, or
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(ii) a promise to replace, maintain or repair an article or any part
thereof or to repeat or continue a service until it has achieved a
specified result
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if the form of purported warranty or guarantee or promise is
materially misleading or if there is no reasonable prospect that it will
be carried out; or
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(d) make a materially misleading representation to the public
concerning the price at which a product or like products have been,
are or will be ordinarily sold, and for the purposes of this paragraph
a representation as to price is deemed to refer to the price at which
the product has been sold by sellers generally in the relevant market
unless it is clearly specified to be the price at which the product has
been sold by the person by whom or on whose behalf the
representation is made.
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(2) For the purposes of this section and section 53, a representation
that is
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(a) expressed on an article offered or displayed for sale, its wrapper
or container,
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(b) expressed on anything attached to, inserted in or accompanying
an article offered or displayed for sale, its wrapper or container, or
anything on which the article is mounted for display or sale,
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(c) expressed on an in-store or other point-of-purchase display,
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(d) made in the course of in-store, door-to-door or telephone selling
to a person as ultimate user, or
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(e) contained in or on anything that is sold, sent, delivered,
transmitted or in any other manner whatever made available to a
member of the public,
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shall be deemed to be made to the public by and only by the person who
caused the representation to be so expressed, made or contained and,
where that person is outside Canada, by
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(f) the person who imported the article into Canada, in a case
described in paragraph (a), (b) or (e), and
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(g) the person who imported the display into Canada, in a case
described in paragraph (c).
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(2) Subsections 52(3) and (4) read as follows:
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(3) Subject to subsection (2), every one who, for the purpose of
promoting, directly or indirectly, the supply or use of a product or any
business interest, supplies to a wholesaler, retailer or other distributor
of a product any material or thing that contains a representation of a
nature referred to in subsection (1) shall be deemed to have made that
representation to the public.
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(4) In any prosecution for a contravention of this section, the general
impression conveyed by a representation as well as the literal meaning
thereof shall be taken into account in determining whether or not the
representation is false or misleading in a material respect.
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(3) The relevant portion of subsection 52(5) reads as
follows:
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(5) Any person who contravenes subsection (1) is guilty of an
offence and liable
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(b) on summary conviction, to a fine not exceeding twenty-five
thousand dollars or to imprisonment for a term not exceeding one
year or to both.
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(4) New.
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Clause 13: New.
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Clause 14: Sections 53 and 54 read as follows:
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53. (1) No person shall, for the purpose of promoting, directly or
indirectly, the supply or use of any product, or for the purpose of
promoting, directly or indirectly, any business interest,
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(a) make a representation to the public that a test as to the
performance, efficacy or length of life of the product has been made
by any person, or
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(b) publish a testimonial with respect to the product,
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unless he can establish that
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(c) the representation or testimonial was previously made or
published by the person by whom the test was made or the
testimonial was given, as the case may be, or
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(d) the representation or testimonial was, before being made or
published, approved and permission to make or publish it was given
in writing by the person by whom the test was made or the
testimonial was given, as the case may be,
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and the representation or testimonial accords with the representation or
testimonial previously made, published or approved.
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(2) Any person who contravenes subsection (1) is guilty of an
offence and liable
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(a) on conviction on indictment, to a fine in the discretion of the court
or to imprisonment for a term not exceeding five years or to both; or
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(b) on summary conviction, to a fine not exceeding twenty-five
thousand dollars or to imprisonment for a term not exceeding one
year or to both.
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54. (1) No person shall supply a product at a price that exceeds the
lowest of two or more prices clearly expressed by him or on his behalf,
in respect of the product in the quantity in which it is so supplied and at
the time at which it is so supplied,
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(a) on the product, its wrapper or container;
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(b) on anything attached to, inserted in or accompanying the product,
its wrapper or container or anything on which the product is mounted
for display or sale; or
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(c) on an in-store or other point-of-purchase display or advertise
ment.
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(2) Any person who contravenes subsection (1) is guilty of an
offence and liable on summary conviction to a fine not exceeding ten
thousand dollars or to imprisonment for a term not exceeding one year
or to both.
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Clause 15: The relevant portion of subsection 55(3)
reads as follows:
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(3) Any person who contravenes subsection (2) or (2.1) is guilty of
an offence and liable
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(b) on summary conviction, to a fine not exceeding twenty-five
thousand dollars or to imprisonment for a term not exceeding one
year or to both.
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Clause 16: The relevant portion of subsection 55.1(3)
reads as follows:
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(3) Any person who contravenes subsection (2) is guilty of an
offence and liable
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(b) on summary conviction, to a fine not exceeding twenty-five
thousand dollars or to imprisonment for a term not exceeding one
year or to both.
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Clause 17: Sections 56 to 60 read as follows:
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56. (1) For the purposes of this section, ``scheme of referral selling''
means a scheme for the sale or lease of a product whereby one person
induces another person (the ``second'' person) to purchase or lease a
product and represents that the second person will or may receive a
rebate, commission or other benefit based in whole or in part on sales
or leases of the same or another product made, other than by the second
person, to other persons whose names are supplied by the second
person.
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(2) No person shall induce or invite another person to participate in
a scheme of referral selling.
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(3) Any person who contravenes subsection (2) is guilty of an
offence and liable
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(a) on conviction on indictment, to a fine in the discretion of the court
or to imprisonment for a term not exceeding five years or to both; or
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(b) on summary conviction, to a fine not exceeding twenty-five
thousand dollars or to imprisonment for a term not exceeding one
year or to both.
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(4) This section does not apply in respect of a scheme of referral
selling that is licensed or otherwise permitted by or pursuant to an Act
of the legislature of a province.
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57. (1) For the purposes of this section, ``bargain price'' means
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(a) a price that is represented in an advertisement to be a bargain
price by reference to an ordinary price or otherwise; or
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(b) a price that a person who reads, hears or sees the advertisement
would reasonably understand to be a bargain price by reason of the
prices at which the product advertised or like products are ordinarily
sold.
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(2) No person shall advertise at a bargain price a product that he does
not supply in reasonable quantities having regard to the nature of the
market in which he carries on business, the nature and size of the
business carried on by him and the nature of the advertisement.
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(3) Subsection (2) does not apply to a person who establishes that
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(a) he took reasonable steps to obtain in adequate time a quantity of
the product that would have been reasonable having regard to the
nature of the advertisement, but was unable to obtain such a quantity
by reason of events beyond his control that he could not reasonably
have anticipated;
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(b) he obtained a quantity of the product that was reasonable having
regard to the nature of the advertisement, but was unable to meet the
demand therefor because that demand surpassed his reasonable
expectations; or
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(c) after he became unable to supply the product in accordance with
the advertisement, he undertook to supply the same product or an
equivalent product of equal or better quality at the bargain price and
within a reasonable time to all persons who requested the product
and who were not supplied therewith during the time when the
bargain price applied and that he fulfilled the undertaking.
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(4) Any person who contravenes subsection (2) is guilty of an
offence and liable on summary conviction to a fine not exceeding
twenty-five thousand dollars or to imprisonment for a term not
exceeding one year or to both.
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58. (1) No person who advertises a product for sale or rent in a market
shall, during the period and in the market to which the advertisement
relates, supply the product at a price that is higher than the price
advertised.
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(2) Any person who contravenes subsection (1) is guilty of an
offence and liable on summary conviction to a fine not exceeding
twenty-five thousand dollars or to imprisonment for a term not
exceeding one year or to both.
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(3) This section does not apply
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(a) in respect of an advertisement that appears in a catalogue in
which it is prominently stated that the prices contained therein are
subject to error if the person establishes that the price advertised is
in error;
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(b) in respect of an advertisement that is immediately followed by
another advertisement correcting the price mentioned in the first
advertisement;
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(c) in respect of the sale of a security obtained on the open market
during a period when the prospectus relating to that security is still
current; or
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(d) in respect of the sale of a product by or on behalf of a person who
is not engaged in the business of dealing in that product.
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(4) For the purpose of this section, the market to which an
advertisement relates shall be deemed to be the market to which the
advertisement could reasonably be expected to reach, unless the
advertisement defines the market more narrowly by reference to a
geographical area, store, department of a store, sale by catalogue or
otherwise.
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59. (1) No person shall, for the purpose of promoting, directly or
indirectly, the sale of a product, or for the purpose of promoting, directly
or indirectly, any business interest, conduct any contest, lottery, game
of chance or skill, or mixed chance and skill, or otherwise dispose of any
product or other benefit by any mode of chance, skill or mixed chance
and skill whatever unless the contest, lottery, game or disposal would
be lawful except for this section and unless
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(a) there is adequate and fair disclosure of the number and
approximate value of the prizes, of the area or areas to which they
relate and of any fact within the knowledge of the advertiser that
affects materially the chances of winning;
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(b) distribution of the prizes is not unduly delayed; and
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(c) selection of participants or distribution of prizes is made on the
basis of skill or on a random basis in any area to which prizes have
been allocated.
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(2) Any person who contravenes subsection (1) is guilty of an
offence and liable
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(a) on conviction on indictment, to a fine in the discretion of the court
or to imprisonment for a term not exceeding five years or to both; or
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(b) on summary conviction, to a fine not exceeding twenty-five
thousand dollars or to imprisonment for a term not exceeding one
year or to both.
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60. (1) Sections 52 to 59 do not apply to a person who prints or
publishes or otherwise distributes a representation or an advertisement
on behalf of another person in Canada, where he establishes that he
obtained and recorded the name and address of that other person and
that he accepted the representation or advertisement in good faith for
printing, publishing or other distribution in the ordinary course of his
business.
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(2) No person shall be convicted of an offence under section 52 or
53, if he establishes that
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(a) the act or omission giving rise to the offence with which he is
charged was the result of error;
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(b) he took reasonable precautions and exercised due diligence to
prevent the occurrence of the error;
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(c) he, or another person, took reasonable measures to bring the error
to the attention of the class of persons likely to have been reached by
the representation or testimonial; and
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(d) the measures referred to in paragraph (c), except where the
representation or testimonial related to a security, were taken
forthwith after the representation was made or the testimonial was
published.
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(3) Subsection (2) does not apply in respect of a person who, in
Canada, on behalf of a person outside Canada, makes a representation
to the public or publishes a testimonial.
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Clause 18: Subsections 65(1) and (2) read as follows:
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65. (1) Every person who contravenes subsection 15(5) or 16(2) is
guilty of an offence and liable on summary conviction or on conviction
on indictment to a fine not exceeding five thousand dollars or to
imprisonment for a term not exceeding two years or to both.
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(2) Every person who, without good and sufficient cause, the proof
of which lies on the person, fails to comply with an order made under
section 11 or with section 114 or 123 is guilty of an offence and liable
on summary conviction or on conviction on indictment to a fine not
exceeding five thousand dollars or to imprisonment for a term not
exceeding two years or to both.
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Clause 19: New.
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Clause 20: The relevant portion of section 68 reads as
follows:
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68. Notwithstanding any other Act, a prosecution for an offence
under Part VI or section 74 may be brought, in addition to any place in
which the prosecution may be brought by virtue of the Criminal Code.
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Clause 21: Section 73 reads as follows:
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73. (1) Subject to this section, the Attorney General of Canada may
institute and conduct any prosecution or other proceedings under
section 34, any of sections 45 to 51 and section 61 or, where the
proceedings are on indictment, under section 52, 53, 55, 56, 59 or 74,
in the Federal Court - Trial Division, and for the purposes of the
prosecution or other proceedings, the Federal Court - Trial Division
has all the powers and jurisdiction of a superior court of criminal
jurisdiction under the Criminal Code and under this Act.
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(2) The trial of an offence under Part VI or section 74 in the Federal
Court - Trial Division shall be without a jury.
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(3) An appeal lies from the Federal Court - Trial Division to the
Federal Court of Appeal and from the Federal Court of Appeal to the
Supreme Court of Canada in any prosecution or proceedings under Part
VI or section 74 of this Act as provided in Part XXI of the Criminal Code
for appeals from a trial court and from a court of appeal.
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(4) Proceedings under subsection 34(2) may in the discretion of the
Attorney General be instituted in either the Federal Court - Trial
Division or a superior court of criminal jurisdiction in the province but
no prosecution shall be instituted against an individual in the Federal
Court - Trial Division in respect of an offence under Part VI or section
74 without the consent of the individual.
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Clause 22: Part VII.1 is new. Section 74 reads as
follows:
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74. Any person who contravenes or fails to comply with an order of
the Tribunal under Part VIII is guilty of an offence and liable
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(a) on conviction on indictment, to a fine in the discretion of the court
or to imprisonment for a term not exceeding five years or to both; or
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(b) on summary conviction, to a fine not exceeding twenty-five
thousand dollars or to imprisonment for a term not exceeding one
year or to both.
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Clause 23: Subsection 77(2) reads as follows:
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(2) Where, on application by the Director, the Tribunal finds that
exclusive dealing or tied selling, because it is engaged in by a major
supplier of a product in a market or because it is widespread in a market,
is likely to
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(a) impede entry into or expansion of a firm in the market,
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(b) impede introduction of a product into or expansion of sales of a
product in the market, or
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(c) have any other exclusionary effect in the market,
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with the result that competition is or is likely to be lessened substantial
ly, the Tribunal may make an order directed to all or any of the suppliers
against whom an order is sought prohibiting them from continuing to
engage in that exclusive dealing or tied selling and containing any other
requirement that, in its opinion, is necessary to overcome the effects
thereof in the market or to restore or stimulate competition in the market.
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Clause 24: (1) Subsection 100(1) reads as follows:
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100. (1) Where, on application by the Director, the Tribunal finds, in
respect of a proposed merger in respect of which an application has not
been made under section 92 or previously under this section, that
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(a) the proposed merger is reasonably likely to prevent or lessen
competition substantially and, in the opinion of the Tribunal, in the
absence of an interim order a party to the proposed merger or any
other person is likely to take an action that would substantially
impair the ability of the Tribunal to remedy the effect of the proposed
merger on competition under section 92 because that action would
be difficult to reverse, or
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(b) there has been a failure to comply with section 114 in respect of
the proposed merger,
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the Tribunal may issue an interim order forbidding any person named
in the application from doing any act or thing that it appears to the Tribu
nal may constitute or be directed toward the completion or implementa
tion of the proposed merger.
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(2) The relevant portion of subsection 100(3) reads as
follows:
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(3) Where the Tribunal is satisfied, in respect of an application made
under subsection (1), that
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(3) The relevant portion of subsection 100(4) reads as
follows:
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(4) An interim order issued under subsection (1)
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(b) subject to subsection (5), shall have effect for such period of time
as is specified therein.
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(4) Subsections 100(7) and (8) are new. Subsections
100(5) and (6) read as follows:
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(5) An interim order issued under subsection (1) in respect of a
proposed merger shall cease to have effect
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(a) in the case of an interim order issued on ex parte application, not
later than ten days, or
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(b) in any other case, not later than twenty-one days,
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after the interim order comes into effect or, in the circumstances referred
to in paragraph (1)(b), after section 114 is complied with.
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(6) Where an interim order is issued under paragraph (1)(a), the
Director shall proceed as expeditiously as possible to commence and
complete proceedings under section 92 in respect of the proposed
merger.
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Clause 25: (1) The definition ``prescribed'' in subsec
tion 2(1) reads as follows:
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``prescribed'' means prescribed by regulation of the Governor in Coun
cil;
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(2) New.
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Clause 26: Subsection 109(2) reads as follows:
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(2) For the purpose of subsection (1), with respect to a proposed
acquisition of shares, the parties to the transaction are the person or
persons who propose to acquire the shares and the corporation the
shares of which are to be acquired.
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Clause 27: New.
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Clause 28: The headings before section 111 read as
follows:
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Acquisitions of Voting Shares or Assets
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Clause 29: The relevant portion of section 111 reads
as follows:
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111. The following classes of transactions are exempt from the
application of this Part:
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(b) an acquisition of voting shares solely for the purpose of
underwriting the shares, within the meaning of subsection 5(2);
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(c) an acquisition of voting shares or assets that would result from a
gift, intestate succession or testamentary disposition;
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Clause 30: The relevant portion of section 113 reads
as follows:
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113. The following classes of transactions are exempt from the
application of this Part:
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(c) a transaction pursuant to an agreement entered into before this
section comes into force but substantially completed within one year
after this section comes into force; and
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Clause 31: (1) and (2) The relevant portion of
subsection 114(1) reads as follows:
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114. (1) Subject to this Part, where
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(a) a person, or two or more persons pursuant to an agreement or
arrangement, propose to acquire assets in the circumstances set out
in subsection 110(2) or to acquire shares in the circumstances set out
in subsection 110(3),
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the person or persons who are proposing the transaction shall, before
completing the transaction, notify the Director that the transaction is
proposed and supply the Director with information in accordance with
section 120.
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(3) Subsections 114(3) and (4) are new. Subsection
114(2) reads as follows:
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(2) Where more than one person is required to give notice and supply
information under this section in respect of the same transaction, any of
those persons who is duly authorized to do so may give notice or supply
information on behalf of and in lieu of any of the others, and any of those
persons may give notice and supply information jointly.
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Clause 32: Subsections 115(1) and (2) read as follows:
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115. (1) It is not necessary to comply with section 114 in respect of
a proposed acquisition of voting shares where a limit set out in
subsection 110(3) would be exceeded as a result of the proposed
acquisition within three years immediately following a previous
compliance with section 114 required in relation to the same limit.
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(2) Where a person or persons who propose to acquire voting shares
are required to comply with section 114 because the twenty or
thirty-five per cent limit set out in subsection 110(3) would be exceeded
as a result of the acquisition, the person or persons may, at the time of
the compliance, give notice to the Director of a proposed further
acquisition of voting shares that would result in a fifty per cent limit set
out in that subsection being exceeded, and supply the Director with a
detailed description in writing of the steps to be carried out in the further
acquisition.
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Clause 33: Subsection 116(2.1) is new. Subsection
116(3) reads as follows:
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(3) Where a person chooses not to supply the Director with
information required under section 114 and so informs the Director in
accordance with subsection (2) and the Director notifies that person
within seven days after the Director is so informed that he requires the
information, the person shall supply the Director with the information.
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Clause 34: The heading before section 120 and
sections 120 to 122 read as follows:
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120. The information required under section 114 is, at the option of
the person supplying the information,
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(a) the information set out in section 121, or
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(b) the information set out in section 122,
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but, where the person supplying the information chooses to supply the
Director with the information referred to in paragraph (a) and the Direc
tor notifies that person within seven days after the day on which he re
ceives the information that he requires the information referred to in
paragraph (b), the information referred to in paragraph (b) is required
as well.
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121. The information referred to in paragraph 120(a) is
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(a) a description of the proposed transaction and the business
objectives intended to be achieved as a result thereof;
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(b) copies of the legal documents, or the most recent drafts thereof
if the documents have not been executed, that are to be used to
implement the proposed transaction; and
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(c) in respect of each person who is required to supply the
information and, in the case of information required under paragraph
114(1)(a), the corporation the shares of which or the person the
assets of whom are proposed to be acquired,
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(ii) the addresses of their principal offices and, in the case of a
corporation, the jurisdiction under which it was incorporated,
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(iii) a list of their affiliates that have significant assets in Canada
or significant gross revenues from sales in, from or into Canada
and a chart describing the relationships between themselves and
those affiliates,
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(iv) a summary description of their principal businesses and the
principal businesses of their affiliates referred to in subparagraph
(iii), including statements identifying the current principal
suppliers and customers of those principal businesses and the
annual volume of purchases from and sales to those suppliers and
customers,
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(A) their gross and net assets as of the end of their most
recently completed fiscal year, and
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(B) their gross revenues from sales for that year,
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(vi) in so far as the information is known, or reasonably available,
a copy of every proxy solicitation circular, prospectus and other
information form filed with a securities commission, stock
exchange or other similar authority in Canada or elsewhere or
sent or otherwise made available to shareholders within the
previous two years, and
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(vii) to the extent available, financial statements of
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(A) the acquiring party, in the case of a proposed transaction
referred to in paragraph 114(1)(a),
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(B) the continuing corporation, in the case of a proposed
transaction referred to in paragraph 114(1)(b), or
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(C) the combination, in the case of a proposed transaction
referred to in paragraph 114(1)(c),
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prepared on a pro forma basis as if the proposed transaction had
occurred previously.
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122. The information referred to in paragraph 120(b) is
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(a) a description of the proposed transaction and the business
objectives intended to be achieved as a result thereof;
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(b) copies of the legal documents, or the most recent drafts thereof
if the documents have not been executed, that are to be used to
implement the proposed transaction;
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(c) in respect of each person who is required to supply the
information, each of their wholly-owned affiliates or wholly-owning
affiliates that has significant assets in Canada or significant sales in,
from or into Canada and, in the case of information required under
paragraph 114(1)(a), the corporation the shares of which or the
person the assets of whom are proposed to be acquired,
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(ii) the addresses of their principal offices and, in the case of a
corporation, the jurisdiction under which it was incorporated,
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(iii) the names and business addresses of their directors and
officers,
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(iv) a summary description of their principal businesses including
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(A) to the extent available, financial statements relating to
their principal businesses for their most recently completed
fiscal year and subsequent interim periods, and
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(B) statements identifying the principal current suppliers and
customers of their principal businesses and the annual volume
of purchases from and sales to such suppliers and customers,
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(A) their gross and net assets as of the end of their most
recently completed fiscal year, and
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(B) their gross revenues from sales for that year,
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(vi) the principal categories of products produced, supplied or
distributed by each of them and their gross sales for each principal
category of product, for their most recently completed fiscal year,
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(vii) the principal categories of products purchased or acquired
by each of them and their total expenditures for each principal
category of product, for their most recently completed fiscal year,
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(viii) the number of votes attached to voting shares held, directly
or indirectly through one or more affiliates or otherwise, by each
of them in any corporation carrying on an operating business,
whether through one or more subsidiaries or otherwise, where the
total of all votes attached to shares so held exceeds twenty per
cent of the votes attached to all outstanding voting shares of the
corporation,
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(ix) a copy of every proxy solicitation circular, prospectus and
other information form filed with a securities commission, stock
exchange or other similar authority in Canada or elsewhere or
sent or otherwise made available to shareholders within the
previous two years,
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(x) financial or statistical data prepared to assist the board of
directors or senior officers of any of them in analyzing the
proposed transaction, including, to the extent that opinions or
judgments are not contained therein, any such data that is
contained in any part of a study or report,
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(xi) to the extent available, financial statements of
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(A) the acquiring party, in the case of a proposed transaction
referred to in paragraph 114(1)(a),
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(B) the continuing corporation, in the case of a proposed
transaction referred to in paragraph 114(1)(b), or
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(C) the combination, in the case of a proposed transaction
referred to in paragraph 114(1)(c),
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prepared on a pro forma basis as if the proposed transaction had
occurred previously, and
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(xii) if any of them have taken a decision or entered into a
commitment or undertaking to make significant changes in any
business to which the proposed transaction relates, a summary
description of that decision, commitment or undertaking; and
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(d) in respect of any affiliate of each person who is required to supply
the information, other than a wholly-owned affiliate or wholly-own
ing affiliate of such a person, that has significant assets in, or
significant gross revenues from sales in, from or into Canada, the
information set out in subparagraphs (c)(v) to (xii).
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Clause 35: Section 123 reads as follows:
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123. A proposed transaction referred to in section 114 shall not be
completed before the expiration of
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(a) seven days after the day on which the information required under
section 114, certified under section 118, has been received by the
Director, where the person supplying the information has chosen to
supply the Director with the information set out in section 121 and
the Director has not, within that time, required the information set out
in section 122,
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(b) except as provided in paragraph (c), twenty-one days after the
day on which the information required under section 114, certified
under section 118, has been received by the Director, where the
person supplying the information has chosen, or is required, to
supply the Director with the information set out in section 122, or
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(c) where the proposed transaction is an acquisition of voting shares
that is to be effected through the facilities of a stock exchange in
Canada and the information supplied is the information set out in
section 122, ten trading days, or such longer period of time, not
exceeding twenty-one days, as may be allowed by the rules of the
stock exchange before shares must be taken up, after the day on
which the information required under section 114, certified under
section 118, has been received by the Director,
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unless the Director, before the expiration of that time, notifies the per
sons who are required to give notice and supply information that the Di
rector does not, at that time, intend to make an application under section
92 in respect of the proposed transaction.
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Clause 36: Section 127 reads as follows:
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127. The Director shall report annually to the Minister on the
proceedings under this Act, and the Minister shall cause the report to be
laid before each House of Parliament on any of the first fifteen days after
the Minister receives the report on which that House is sitting.
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Clause 41: Subsection 8(1) reads as follows:
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8. (1) The Tribunal has jurisdiction to hear and determine all
applications made under Part VIII of the Competition Act and any
matters related thereto.
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Clause 42: Subsection 9(3) reads as follows:
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(3) Any person may, with leave of the Tribunal, intervene in any
proceedings before the Tribunal to make representations relevant to
those proceedings in respect of any matter that affects that person.
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Clause 43: Section 11 reads as follows:
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11. The Chairman of the Tribunal may designate a judicial member
to sit alone, or may sit alone, to deal with applications for interim orders
under subsection 100(1) or 104(1) of the Competition Act and any
matters related thereto.
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Clause 44: (1) New.
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(2) New.
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Clause 45: Subsection 70.5(1) reads as follows:
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70.5 (1) For the purposes of this section and section 70.6, ``Director''
means the Director of Investigation and Research appointed under the
Competition Act.
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Clause 47: The relevent portion of the definition
``offence'' in section 183 reads as follows:
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``offence'' means an offence contrary to, any conspiracy or attempt to
commit or being an accessory after the fact in relation to an offence
contrary to, or any counselling in relation to an offence contrary to
...
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Clause 48: New.
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Clause 50: (1) The definition ``Director'' in subsec
tion 2(1) reads as follows:
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``Director'' means the Director of Investigation and Research ap
pointed under the Competition Act;
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(2) New.
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Clause 52: New.
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