Bill C-67

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First Reading

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Saving	(2) This section does not apply
	(a) in respect of an advertisement that appears in a catalogue in which it is prominently stated that the prices contained in it are subject to error if the person establishes that the price advertised is in error;
	(b) in respect of an advertisement that is immediately followed by another adver tisement correcting the price mentioned in the first advertisement;
	(c) in respect of the supply of a security obtained on the open market during a period when the prospectus relating to that security is still current; or
	(d) in respect of the supply of a product by or on behalf of a person who is not engaged in the business of dealing in that product.
Application	(3) For the purpose of this section, the market to which an advertisement relates is the market that the advertisement could reasonably be expected to reach, unless the advertisement defines the market more nar rowly by reference to a geographical area, store, department of a store, sale by catalogue or otherwise.
Promotional contests	74.06 (1) A person engages in reviewable conduct who, 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, conducts any contest, lottery, game of chance or skill, or mixed chance and skill, or other wise disposes of any product or other benefit by any mode of chance, skill or mixed chance and skill whatever, where
	(a) adequate and fair disclosure is not made 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 person that affects materially the chances of winning;
	(b) distribution of the prizes is unduly delayed; or
	(c) selection of participants or distribution of prizes is not made on the basis of skill or on a random basis in any area to which prizes have been allocated.
Saving	74.07 (1) Sections 74.01 to 74.06 do not apply to a person who prints or publishes or otherwise disseminates a representation, in cluding an advertisement, on behalf of another person in Canada, where the person esta blishes that the person obtained and recorded the name and address of that other person and accepted the representation in good faith for printing, publishing or other dissemination in the ordinary course of that person's business.
Non- application	(2) Sections 74.01 to 74.06 do not apply in respect of conduct prohibited by sections 52.1, 55 and 55.1.
Civil rights not affected	74.08 Except as otherwise provided in this Part, nothing in this Part shall be construed as depriving any person of a civil right of action.
	Administrative Remedies
Definition	74.09 In sections 74.1 to 74.14, ``court'' means the Tribunal, the Federal Court-Trial Division or the superior court of a province.
Application by Director	74.1 (1) Where, on application by the Director, a court determines that a person is engaging in or has engaged in reviewable conduct under this Part, the court may order the person
	(a) not to engage in the conduct or substan tially similar reviewable conduct;
	(b) to publish or otherwise disseminate a notice, in such manner and at such times as the court may specify, to bring to the attention of the class of persons likely to have been reached or affected by the conduct, the name under which the person carries on business and the determination made under this section, including
	(i) a description of the reviewable con duct,
	(ii) the time period and geographical area to which the conduct relates, and
	(iii) a description of the manner in which any representation or advertisement was disseminated, including, where applica ble, the name of the publication or other medium employed; and
	(c) to pay an administrative monetary penalty, in such manner as the court may specify, in an amount not exceeding
	(i) in the case of an individual, fifty thousand dollars and, for each subse quent order, one hundred thousand dol lars, or
	(ii) in the case of a corporation, one hundred thousand dollars and, for each subsequent order, two hundred thousand dollars.
Duration of order	(2) An order made under paragraph (1)(a) applies for a period of ten years unless the court specifies a shorter period.
Saving	(3) No order may be made against a person under paragraph (1)(b) or (c) where the person establishes that the person exercised due diligence to prevent the reviewable conduct from occurring.
Purpose of order	(4) The terms of an order made against a person under paragraph (1)(b) or (c) shall be determined with a view to promoting conduct by that person that is in conformity with the purposes of this Part, and not with a view to punishment.
Aggravating or mitigating factors	(5) Any evidence of the following shall be taken into account in determining the amount of an administrative monetary penalty under paragraph (1)(c):
	(a) the reach of the conduct within the relevant geographic market;
	(b) the frequency and duration of the conduct;
	(c) the vulnerability of the class of persons likely to be adversely affected by the conduct;
	(d) the materiality of any representation;
	(e) the likelihood of self-correction in the relevant geographic market;
	(f) injury to competition in the relevant geographic market;
	(g) the history of compliance with this Act by the person who engaged in the review able conduct; and
	(h) any other relevant factor.
Meaning of subsequent order	(6) For the purposes of paragraph (1)(c), an order made against a person in respect of conduct that is reviewable under paragraph 74.01(1)(a), (b) or (c), subsection 74.01(2) or (3) or section 74.02, 74.04, 74.05 or 74.06 is a subsequent order if
	(a) an order was previously made against the person under this section in respect of conduct reviewable under the same provi sion;
	(b) the person was previously convicted of an offence under the provision of Part VI, as that Part read immediately before the coming into force of this Part, that corre sponded to the provision of this Part;
	(c) in the case of an order in respect of conduct reviewable under paragraph 74.01(1)(a), the person was previously convicted of an offence under section 52, or under paragraph 52(1)(a) as it read immedi ately before the coming into force of this Part; or
	(d) in the case of an order in respect of conduct reviewable under subsection 74.01(2) or (3), the person was previously convicted of an offence under paragraph 52(1)(d) as it read immediately before the coming into force of this Part.
Temporary order	74.11 (1) Where, on application by the Director, a court finds a strong prima facie case that a person is engaging in reviewable conduct under this Part, the court may order the person not to engage in that conduct or substantially similar reviewable conduct, if the court is satisfied that
	(a) unless the order is issued, serious harm is likely to ensue; and
	(b) the balance of convenience favours issuing the order.
Duration of order	(2) Subject to subsection (5), an order issued under subsection (1) shall have effect for such period as is specified in it, not exceeding fourteen days unless agreed to by the person against whom the order is sought or unless, on further application, the order is extended for an additional period not exceed ing fourteen days.
Notice of application	(3) Subject to subsection (4), at least forty-eight hours notice of an application referred to in subsection (1) or (2) shall be given by or on behalf of the Director to the person in respect of whom the order or extension is sought.
Ex parte application	(4) The court may proceed ex parte with an application made under subsection (1) where it is satisfied that subsection (3) cannot reasonably be complied with or that the urgency of the situation is such that service of notice in accordance with subsection (3) would not be in the public interest.
Duration of ex parte order	(5) An order issued ex parte shall have effect for such period as is specified in it, not exceeding seven days unless, on further application made on notice as provided in subsection (3), the order is extended for an additional period not exceeding twenty-one days.
Consent orders	74.12 (1) Where an application is made to a court for an order under this Part and the Director and the person against whom the order is sought agree on the terms of the order, whether or not any of the terms could have been imposed by the court under this Part, the order agreed to may be filed with the court for immediate registration.
Effect of filing	(2) On being filed under subsection (1), an order shall be registered and, when registered, shall have the same force and effect, and all proceedings may be taken, as if the order had been made by the court.
Rescission or variation of order	74.13 An order made under this Part may be rescinded or varied by the court that made the order where, on application by the Director or the person against whom the order was made, the court finds that the circumstances that led to the making of the order have changed and that, in the circumstances that exist at the time the application is made, the order would not have been made or would have been ineffec tive in achieving its intended purpose.
Evidence	74.14 In determining whether or not to make an order under this Part, the court shall not exclude from consideration any evidence by reason only that it might be evidence in respect of an offence under this Act or in respect of which another order could be made by the court under this Act.
Unpaid monetary penalty	74.15 The amount of an administrative monetary penalty imposed on a person under paragraph 74.1(1)(c) is a debt due to Her Majesty in right of Canada and may be recovered as such from that person in a court of competent jurisdiction.
Duplication of proceedings	74.16 No application may be made by the Director for an order under this Part against a person where proceedings have been com menced under section 52 against that person on the basis of the same or substantially the same facts as would be alleged in proceedings under this Part.
Procedure	74.17 The Federal Court-Trial Division or a superior court of a province may make rules respecting the procedure for the disposition of applications by that court under this Part.
Appeal to provincial court of appeal	74.18 (1) An appeal may be brought in the court of appeal of a province from any decision or order made under this Part, or a refusal to make an order, by a superior court of the province.
Disposition of appeal	(2) Where the court of appeal of a province allows an appeal under this section, it may quash the decision or order appealed from, refer the matter back to that court or make any decision or order that, in its opinion, that court should have made.
Question of fact	74.19 An appeal from a decision or order made by a court under this Part on a question of fact may be brought only with the leave of the court appealed to.
R.S., c. 19 (2nd Supp.), s. 45	24. Paragraphs 77(2)(a) to (c) of the Act are replaced by the following:
	(a) impede entry into or expansion of a firm in a market,
	(b) impede introduction of a product into or expansion of sales of a product in a market, or
	(c) have any other exclusionary effect in a market,
R.S., c. 19 (2nd Supp.), s. 45	25. (1) Subsection 100(1) of the Act is replaced by the following:
Interim order where no application under section 92	100. (1) 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 Tribunal may constitute or be directed toward the completion or imple mentation of a proposed merger in respect of which an application has not been made under section 92 or previously under this section, where
	(a) on application by the Director, certify ing that an inquiry is being made under paragraph 10(1)(b) and that, in the Direc tor's opinion, more time is required to complete the inquiry, the Tribunal finds that 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 Tribu nal to remedy the effect of the proposed merger on competition under that section because that action would be difficult to reverse; or
	(b) the Tribunal finds, on application by the Director, that there has been a contraven tion of section 114 in respect of the proposed merger.
R.S., c. 19 (2nd Supp.), s. 45	(2) The portion of subsection 100(3) of the Act before paragraph (a) is replaced by the following:
Ex parte application	(3) Where the Tribunal is satisfied, in respect of an application for an interim order under paragraph (1)(b) , that
R.S., c. 19 (2nd Supp.), s. 45	(3) Paragraph 100(4)(b) of the Act is replaced by the following:
	(b) subject to subsections (5) and (6) , shall have effect for such period of time as is specified in it .
	(4) Subsections 100(5) and (6) of the Act are replaced by the following:
Duration of order: inquiry	(5) The duration of an interim order issued under paragraph (1)(a) shall not exceed thirty days.
Duration of order: failure to comply	(6) The duration of an interim order issued under paragraph (1)(b) shall not exceed
	(a) ten days after section 114 is complied with, in the case of an interim order issued on ex parte application; or
	(b) thirty days after section 114 is complied with, in any other case.
Extension of time	(7) Where the Tribunal finds, on application made by the Director on forty-eight hours notice to each person to whom an interim order is directed, that the Director is unable to complete an inquiry within the period speci fied in the order because of circumstances beyond the control of the Director, the Tribu nal may extend the duration of the order to a day not more than sixty days after the order takes effect.
Completion of inquiry	(8) Where an interim order is issued under paragraph (1)(a), the Director shall proceed as expeditiously as possible to complete the inquiry under section 10 in respect of the proposed merger.
R.S., c. 19 (2nd Supp.), s. 45	26. The definition ``prescribed'' in sub section 108(1) of the English version of the Act is replaced by the following:
``prescribed'' « réglemen- taire »	``prescribed'' means prescribed by regula tions made under section 124 ;
R.S., c. 19 (2nd Supp.), s. 45	27. Subsection 109(2) of the Act is re placed by the following:
Parties to acquisition of shares	(2) For the purposes of this Part, the parties to a proposed acquisition of shares are the person or persons who propose to acquire the shares and the corporation the shares of which are to be acquired.
	28. Section 110 of the Act is amended by adding the following after subsection (5):
Combination	(6) Subject to sections 111, 112 and 113, this Part applies in respect of a proposed acquisi tion of an interest in a combination that carries on an operating business otherwise than through a corporation
	(a) where
	(i) the aggregate value of the assets in Canada, determined as of such time and in such manner as may be prescribed, that are the subject-matter of the combination would exceed thirty-five million dollars or such greater amount as may be pre scribed, or
	(ii) the gross revenues from sales in or from Canada, determined for such annual period and in such manner as may be prescribed, generated from the assets referred to in subparagraph (i) would exceed thirty-five million dollars or such greater amount as may be prescribed, and
	(b) where, as a result of the proposed acquisition of the interest, the person or persons acquiring the interest, together with their affiliates, would hold an aggregate interest in the combination that entitles the person or persons to receive more than thirty-five per cent of the profits of the combination, or more than thirty-five per cent of its assets on dissolution or, where the person or persons acquiring the interest are already so entitled, to receive more than fifty per cent of such profits or assets.

Bill C-67

Administrative Remedies