Competition Act (R.S.C., 1985, c. C-34)

Marginal note:Temporary order

• 74.11 (1) On application by the Commissioner, a court may order a person who it appears to the court is engaging in conduct that is reviewable under this Part not to engage in that conduct or substantially similar reviewable conduct if it appears to the court that

  • (a) serious harm is likely to ensue unless the order is issued; and

  • (b) the balance of convenience favours issuing the order.

• Marginal note:Temporary order — supply of a product

  (1.1) On application by the Commissioner, a court may order any person named in the application to refrain from supplying to another person a product that it appears to the court is or is likely to be used to engage in conduct that is reviewable under this Part, or to do any act or thing that it appears to the court could prevent a person from engaging in such conduct, if it appears to the court that

  • (a) serious harm is likely to ensue unless the order is issued; and

  • (b) the balance of convenience favours issuing the order.

• Marginal note:Duration

  (2) Subject to subsection (5), an order made under subsection (1) or (1.1) has effect, or may be extended on application by the Commissioner, for any period that the court considers sufficient to meet the circumstances of the case.

• Marginal note:Notice of application

  (3) Subject to subsection (4), at least 48 hours’ notice of an application referred to in subsection (1), (1.1) or (2) shall be given by or on behalf of the Commissioner to the person in respect of whom the order or extension is sought.

• Marginal note:Ex parte application

  (4) The court may proceed ex parte with an application made under subsection (1) or (1.1) if 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.

• Marginal note: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 court extends the order for such additional period as it considers necessary and sufficient.

• Marginal note:Duty of Commissioner

  (6) Where an order issued under this section is in effect, the Commissioner shall proceed as expeditiously as possible to complete the inquiry under section 10 arising out of the conduct in respect of which the order was issued.

Marginal note:Interim injunction

• 74.111 (1) If, on application by the Commissioner, a court finds a strong prima facie case that a person is engaging in or has engaged in conduct that is reviewable under paragraph 74.01(1)(a), and the court is satisfied that the person owns or has possession or control of articles within the jurisdiction of the court and is disposing of or is likely to dispose of them by any means, and that the disposal of the articles will substantially impair the enforceability of an order made under paragraph 74.1(1)(d), the court may issue an interim injunction forbidding the person or any other person from disposing of or otherwise dealing with the articles, other than in the manner and on the terms specified in the injunction.

• Marginal note:Statement to be included

  (2) Any application for an injunction under subsection (1) shall include a statement that the Commissioner has applied for an order under paragraph 74.1(1)(d), or that the Commissioner intends to apply for an order under that paragraph if the Commissioner applies for an order under paragraph 74.1(1)(a).

• Marginal note:Duration

  (3) Subject to subsection (6), the injunction has effect, or may be extended on application by the Commissioner, for any period that the court considers sufficient to meet the circumstances of the case.

• Marginal note:Notice of application by Commissioner

  (4) Subject to subsection (5), at least 48 hours’ notice of an application referred to in subsection (1) or (3) shall be given by or on behalf of the Commissioner to the person in respect of whom the injunction or extension is sought.

• Marginal note:Ex parte application

  (5) The court may proceed ex parte with an application made under subsection (1) if it is satisfied that subsection (4) cannot reasonably be complied with or where the urgency of the situation is such that service of the notice in accordance with subsection (4) might defeat the purpose of the injunction or would otherwise not be in the public interest.

• Marginal note:Duration of ex parte injunction

  (6) An injunction issued ex parte has effect for the period that is specified in it, not exceeding seven days unless, on further application made on notice as provided in subsection (4), the court extends the injunction for any additional period that it considers sufficient.

• Marginal note:Submissions to set aside

  (7) On application of the person against whom an ex parte injunction is made, the court may make an order setting aside the injunction or varying it subject to any conditions that it considers appropriate.

• Marginal note:Duty of Commissioner

  (8) If an injunction issued under this section is in effect, the Commissioner shall proceed as expeditiously as possible to complete any inquiry under section 10 arising out of the conduct in respect of which the injunction was issued.

• Marginal note:Definitions

  (9) The following definitions apply in this section.

  dispose

  dispose, in relation to an article, includes removing it from the jurisdiction of the court, depleting its value, leasing it to another person or creating any security interest in it. (disposer)

  security interest

  security interest means any interest or right in property that secures payment or performance of an obligation and includes an interest or right created by or arising out of a debenture, mortgage, hypothec, lien, pledge, charge, security, deemed or actual trust, assignment or encumbrance of any kind whatever, however or whenever arising, created, deemed to arise or otherwise provided for. (garantie)

Marginal note:Consent agreement

• 74.12 (1) The Commissioner and a person in respect of whom the Commissioner has applied or may apply for an order under this Part may sign a consent agreement.

• Marginal note:Terms of consent agreement

  (2) The consent agreement shall be based on terms that could be the subject of an order of a court against that person, and may include other terms, whether or not they could be imposed by the court.

• Marginal note:Registration

  (3) The consent agreement may be filed with the court for immediate registration.

• Marginal note:Effect of registration

  (4) Upon registration of the consent agreement, the proceedings, if any, are terminated and the consent agreement has the same force and effect, and proceedings may be taken, as if it were an order of the court.

Marginal note:Failure to comply with consent agreement

• 74.121 (1) If, on application by the Commissioner, the court determines that a person, without good and sufficient cause, the proof of which lies on the person, has failed to comply or is likely to fail to comply with a consent agreement registered under subsection 74.12(3), the court may

  • (a) prohibit the person from doing anything that, in the court’s opinion, may constitute a failure to comply with the agreement;

  • (b) order the person to take any action that is necessary to comply with the agreement;

  • (c) order the person to pay, in any manner that the court specifies, an administrative monetary penalty in an amount not exceeding $10,000 for each day on which they fail to comply with the agreement, determined by the court after taking into account any evidence of the following:

    • (i) the person’s financial position,

    • (ii) the person’s history of compliance with this Act,

    • (iii) the duration of the period of non-compliance, and

    • (iv) any other relevant factor; or

  • (d) grant any other relief that the court considers appropriate.

• Marginal note:Purpose of order

  (2) The terms of an order under paragraph (1)(c) are to be determined with a view to promoting conduct by the person that is in conformity with the purposes of this Act and not with a view to punishment.

• Marginal note:Unpaid monetary penalty

  (3) The administrative monetary penalty imposed under paragraph (1)(c) is a debt due to His Majesty in right of Canada and may be recovered as such from the person in a court of competent jurisdiction.

Marginal note:Rescission or variation of consent agreement or order

74.13 The court may rescind or vary a consent agreement that it has registered or an order that it has made under this Part, on application by the Commissioner or the person who consented to the agreement, or the person against whom the order was made, if the court finds that

• (a) the circumstances that led to the making of the agreement or order have changed and, in the circumstances that exist at the time the application is made, the agreement or order would not have been made or would have been ineffective in achieving its intended purpose; or

• (b) the Commissioner and the person who consented to the agreement have consented to an alternative agreement or the Commissioner and the person against whom the order was made have consented to an alternative order.

Marginal note: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.

Marginal note: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.

Marginal note:Where proceedings commenced under section 52 or 52.01

74.16 No application may be made under this Part against a person on the basis of facts that are the same or substantially the same as the facts on the basis of which proceedings have been commenced against that person under section 52 or 52.01.

Rules of Procedure

Marginal note:Power of courts

74.17 The rules committee of the Federal Court, or a superior court of a province, may make rules respecting the procedure for the disposition of applications by that court under this Part.

Appeals

Marginal note:Appeal to Federal Court of Appeal

• 74.18 (1) An appeal may be brought in the Federal Court of Appeal from any decision or order made under this Part, or from a refusal to make an order, by the Tribunal or the Federal Court.

• Marginal note:Appeal to provincial court of appeal

  (2) An appeal may be brought in the court of appeal of a province from any decision or order made under this Part, or from a refusal to make an order, by a superior court of the province.

• Marginal note:Disposition of appeal

  (3) Where the Federal Court of Appeal or the court of appeal of the province allows an appeal under this section, it may quash the decision or order appealed from, refer the matter back to the court appealed from or make any decision or order that, in its opinion, that court should have made.

Marginal note:Appeal on question of fact

74.19 An appeal on a question of fact from a decision or order made under this Part may be brought only with the leave of the Federal Court of Appeal or the court of appeal of the province, as the case may be.

PART VIIIMatters Reviewable by Tribunal

Restrictive Trade Practices

Refusal to Deal

Marginal note:Jurisdiction of Tribunal — cases of refusal to deal

• 75 (1) The Tribunal may, on application by the Commissioner or a person granted leave under section 103.1, order one or more suppliers of a product, including a means of diagnosis or repair, in a market to accept a person as a customer, or to make the means of diagnosis or repair available to a person, within a specified period and on the terms that the Tribunal considers appropriate if the Tribunal finds that

  • (a) the person is substantially affected in the whole or part of their business or is precluded from carrying on business due to their inability to obtain adequate supplies of the product anywhere in the market on usual trade terms;

  • (b) the person is unable to obtain adequate supplies of the product because of insufficient competition among suppliers of the product in the market;

  • (c) the person is willing and able to meet the usual trade terms of the supplier or suppliers of the product;

  • (d) the product is in ample supply or, in the case of a means of diagnosis or repair, can be readily supplied; and

  • (e) the refusal to deal is having or is likely to have an adverse effect on competition in a market.

• Marginal note:Non-application

  (1.1) An order made under subsection (1) does not apply in the case of an article if, within the specified time, any customs duties on the article are removed, reduced or remitted and the effect of the removal, reduction or remission is to place the person on an equal footing with other persons who are able to obtain adequate supplies of the article in Canada.

• Marginal note:When article is a separate product

  (2) For the purposes of this section, an article is not a separate product in a market only because it is differentiated from other articles in its class by a trademark, proprietary name or the like, unless the article so differentiated occupies such a dominant position in that market as to substantially affect the ability of a person to carry on business in that class of articles unless that person has access to the article so differentiated.

• Marginal note:Trade secrets

  (2.1) Nothing in this section is to be interpreted as requiring the disclosure of any information that is a trade secret.

• Marginal note:Definitions

  (3) The following definitions apply in this section.

  means of diagnosis or repair

  means of diagnosis or repair includes diagnostic, maintenance, repair and calibration information, technical updates, diagnostic software or tools and any related documentation and service parts. (moyen de diagnostic ou de réparation)

  trade terms

  trade terms means terms in respect of payment, units of purchase and reasonable technical and servicing requirements. (conditions de commerce)

• Marginal note:Inferences

  (4) In considering an application by a person granted leave under section 103.1, the Tribunal may not draw any inference from the fact that the Commissioner has or has not taken any action in respect of the matter raised by the application.