Marginal note:Temporary order
104.1 (1) The Commissioner may make a temporary order prohibiting a person operating a domestic service, as defined in subsection 55(1) of the Canada Transportation Act, from doing an act or a thing that could, in the opinion of the Commissioner, constitute an anti-competitive act or requiring the person to take the steps that the Commissioner considers necessary to prevent injury to competition or harm to another person if
(a) the Commissioner has commenced an inquiry under subsection 10(1) in regard to whether the person has engaged in conduct that is reviewable under section 79; and
(b) the Commissioner considers that in the absence of a temporary order
(i) injury to competition that cannot adequately be remedied by the Tribunal is likely to occur, or
(ii) a person is likely to be eliminated as a competitor, suffer a significant loss of market share, suffer a significant loss of revenue or suffer other harm that cannot be adequately remedied by the Tribunal.
Marginal note:Notice not required
(2) The Commissioner is not obliged to give notice to or receive representations from any person before making a temporary order.
Marginal note:Notice to persons affected
(3) On making a temporary order, the Commissioner shall promptly give written notice of the order, together with the grounds for it, to every person against whom it was made or who is directly affected by it.
Marginal note:Duration of temporary order
(4) Subject to subsections (5) and (6), a temporary order has effect for 20 days.
Marginal note:Extension and revocation
(5) The Commissioner may extend the 20-day period for one or two periods of 30 days each or may revoke a temporary order. The Commissioner shall promptly give written notice of the extension or revocation to every person to whom notice was given under subsection (3).
Marginal note:Application to Tribunal for extension
(5.1) The Commissioner may, before the expiry of the second 30-day period referred to in subsection (5) or of the period fixed by the Tribunal under subsection (7), as the case may be, apply to the Tribunal for a further extension of the temporary order.
Marginal note:Notice of application by Commissioner
(5.2) The Commissioner shall give at least 48 hours notice of an application referred to in subsection (5.1) to the person against whom the temporary order is made.
Marginal note:Extension of temporary order
(5.3) The Tribunal may order that the effective period of the temporary order be extended if
(a) the Commissioner establishes that information requested for the purpose of the inquiry has not yet been provided or that more time is needed in order to review the information;
(b) the information was requested within the initial period that the temporary order had effect, within the first 30 days after an order extending the temporary order under subsection (5) had effect, or within the first 30 days after an order extending the temporary order made under subsection (7) had effect, as the case may be, and
(i) the provision of such information is the subject of a written undertaking, or
(ii) the information was ordered to be provided under section 11; and
(c) the information is reasonably required to determine whether grounds exist for the Commissioner to make an application under section 79.
(5.4) An order extending a temporary order issued under subsection (5.3) shall have effect for such period as the Tribunal considers necessary to give the Commissioner a reasonable opportunity to receive and review the information referred to in that subsection.
Marginal note:Effect of application
(5.5) If an application is made under subsection (5.1), the temporary order has effect until the Tribunal makes a decision whether to grant an extension under subsection (5.3).
Marginal note:When application made to Tribunal
(6) If an application is made under subsection (7), the temporary order has effect until the Tribunal makes an order under that subsection.
(7) A person against whom the Commissioner has made a temporary order may, within the period referred to in subsection (4), apply to the Tribunal to have the temporary order varied or set aside and the Tribunal shall
(a) if it is satisfied that one or more of the conditions set out in paragraph (1)(b) existed or are likely to exist, make an order confirming the temporary order, with or without variation as the Tribunal considers necessary and sufficient to meet the circumstances, and fixing the effective period of its order for a maximum of 60 days after the day on which it is made; and
(b) if it is not satisfied that one or more of the conditions set out in paragraph (1)(b) existed or are likely to exist, make an order setting aside the temporary order.
(8) The applicant shall give written notice of the application to every person to whom notice was given under subsection (3).
Marginal note:Commissioner is respondent
(9) In the event of an application under subsection (7), the Commissioner is the respondent.
(10) At the hearing of an application under subsection (7), the Tribunal shall provide the applicant, the Commissioner and any person directly affected by the temporary order with a full opportunity to present evidence and make representations before the Tribunal makes an order under that subsection.
Marginal note:Prohibition of extraordinary relief
(11) Except as provided for by subsection (7),
(a) a temporary order made by the Commissioner shall not be questioned or reviewed in any court; and
(b) no order shall be made, process entered or proceedings taken in any court, whether by way of injunction, certiorari, mandamus, prohibition, quo warranto, declaratory judgment or otherwise, to question, review, prohibit or restrain the Commissioner in the exercise of the jurisdiction granted by this section.
Marginal note:Powers and duties not affected by order
(12) The making of a temporary order does not in any way limit, restrict or qualify the powers, duties or responsibilities of the Commissioner under this Act, including the Commissioner’s power to conduct inquiries and to make applications to the Tribunal in regard to conduct that is the subject of the temporary order.
Marginal note:Registration of orders
(13) The Commissioner shall file each temporary order with the Registry of the Tribunal. Once registered, the order is enforceable in the same manner as an order of the Tribunal.
Marginal note:Duty of Commissioner
(14) When a temporary order is in effect, the Commissioner shall proceed as expeditiously as possible to complete the investigation arising out of the conduct in respect of which the temporary order was made.
(15) No action lies against Her Majesty in right of Canada, the Minister, the Commissioner, any Deputy Commissioner, any person employed in the federal public administration or any person acting under the direction of the Commissioner for anything done or omitted to be done in good faith under this section.
- 2000, c. 15, s. 15;
- 2002, c. 16, s. 13.1;
- 2003, c. 22, s. 224(E).
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