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Bill C-471

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2nd Session, 36th Parliament,
48-49 Elizabeth II, 1999-2000

The House of Commons of Canada

BILL C-471

An Act to amend the Competition Act (international mutual assistance and references) and the Competition Tribunal Act (references)

      Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

R.S., c. C-34; R.S., c. 19 (2nd Supp.), s. 19

COMPETITION ACT

1. The Competition Act is amended by adding the following after section 29:

PART III

INTERNATIONAL MUTUAL ASSISTANCE

Definitions

30.1 In this Part,

``agreement''
« accord »

``agreement'' means a treaty, convention or other international agreement that is in force, to which Canada is a party, respecting mutual legal assistance in competition law matters;

``data''
« données »

``data'' means representations, in any form, of information or concepts;

``evidence''
« preuve »

``evidence'' includes information, records, testimony, statements, documents or copies thereof;

``foreign state''
« État étranger »

``foreign state'' means a state that is party to an agreement;

``record''
« document »

``record'' means any material on which data are recorded or marked and which is capable of being read or understood by a person or a computer system or other device;

``request''
« demande »

``request'' means a request for assistance presented pursuant to an agreement.

Inconsistency of Acts

30.2 (1) In the event of any inconsistency between the provisions of this Part and the provisions of another Act of Parliament, other than the provisions of an Act prohibiting the disclosure of information or prohibiting its disclosure except under certain conditions, the provisions of this Part prevail to the extent of the inconsistency.

Mutual Assistance in Criminal Matters Act

(2) Nothing in this Act shall limit the operation of the Mutual Assistance in Criminal Matters Act.

Preservation of informal arrangements

(3) Nothing in this Part or an agreement shall be construed so as to abrogate or derogate from an arrangement or practice respecting cooperation between a Canadian competent authority and a foreign or international authority or organization.

Agreement

30.3 The Minister may enter into an agreement with a state providing for mutual legal assistance with respect to:

    (a) determining whether a person has violated or is about to violate the competition law of that state, and

    (b) enforcing the competition law of that state.

Essential elements of agreement

30.4 An agreement must contain provisions respecting all of the following matters:

    (a) the right of Canada, for reasons of security, sovereignty or public interest as defined by Canada, to refuse to give effect to a request;

    (b) the confidentiality of information sent by Canada to the foreign state pursuant to a request;

    (c) the information that must be set out in a request presented by the foreign state in order that effect may be given to a request under this Act;

    (d) an undertaking that the foreign state will provide assistance comparable in scope to the assistance provided by Canada;

    (e) an undertaking that information or evidence obtained will be used only for the purpose of enforcement and administration of the competition law of the foreign state;

    (f) an undertaking that information or evidence obtained from a person and provided to the foreign state will not be used for the purposes of criminal proceedings against the person;

    (g) the return of all the evidence provided by Canadian authorities;

    (h) an undertaking that any rights and privileges afforded under Canadian law will be preserved;

    (i) the termination of an agreement if confidentiality provisions have been violated; and

    (j) a requirement that any violation of confidentiality be promptly notified to the Canadian authorities.

Reasons for refusal

30.5 (1) A request may be denied, in whole or in part,

    (a) if the foreign state could more conveniently have the request satisfied from another source;

    (b) if execution of a request would exceed reasonably available resources; and

    (c) if execution of a request is not authorized by Canadian law.

(2) A request shall not be refused solely because the alleged conduct would not constitute a violation of this Act.

Implemen-
tation

30.6 (1) The Commissioner is responsible for the implementation of every agreement.

Execution of request

(2) If a request is made in accordance with an agreement and this Act, the Commissioner shall take all necessary steps to execute the request, including sending the requested evidence to the foreign state.

Application of sections 11 to 20

(3) If a request is made under an agreement, sections 11 to 20 apply, with such modifications as the circumstances require, in respect of obtaining evidence pursuant to this Part, except where those sections are inconsistent with this Part.

Publication in Canada Gazette

30.7 (1) Unless the agreement has been published under subsection (2), an agreement must be published in the Canada Gazette no later than 60 days after it comes into force.

Publication in Canada Treaty Series

(2) An agreement may be published in the Canada Treaty Series and, if so published, the publication must be no later than 60 days after it comes into force.

Judicial notice

(3) Agreements published in the Canada Gazette or the Canada Treaty Series are to be judicially noticed.

Section 29

30.8 For greater certainty, nothing in section 29 limits the ability of the Commissioner to communicate information to a foreign state in accordance with the terms of an agreement.

2. The Act is amended by adding the following before the heading of section 125:

References to the Tribunal

References to the Tribunal by the parties

124.1 (1) Where the Commissioner and a person referred to in subsection (2) agree in writing that a question of law, fact or mixed law and fact arising under Part VII.1, Part VIII or Part IX of this Act, in respect of an inquiry, a transaction or a proposed transaction should be determined by the Tribunal, that question shall be determined by the Tribunal.

(2) For the purpose of subsection (1), person refers to:

    (a) a person whose conduct is being inquired into under section 10; or

    (b) a party or parties to a proposed transaction notifiable under Part IX.

Reference by Commissioner

124.2 The Commissioner may refer any question arising as to the interpretation or application of Part VII.1, Part VIII or Part IX to the Tribunal for hearing and determination.

Hearings in summary way

124.3 A reference to the Tribunal under section 124.1 or 124.2 shall be heard and determined without delay and in a summary way.

R.S., c. 19 (2nd Supp.), Part I; 1999, c. 2, s. 43

COMPETITION TRIBUNAL ACT

3. Subsection 8(1) of the Competition Tribunal Act is replaced by the following:

Jurisdiction and Powers of the Tribunal

8. (1) The Tribunal has jurisdiction to hear and dispose of all applications made under Part VII.1 or VIII of the Competition Act, all references under sections 124.1 or 124.2 and any related matters.

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