C-23 1 37 49-50-51 Elizabeth II 2001-2002

An Act to amend the Competition Act and the Competition Tribunal Act

Competition Act and the Competition Tribunal Act,

An Act to amend the

Competition 2002 6 4 16 2002 90150

SUMMARY

This enactment amends the Competition Act and the Competition Tribunal Act . The amendments include the following:

amendments to facilitate cooperation with foreign competition authorities for the enforcement of civil competition and fair trade practices laws;

amendments prohibiting deceptive prize notices;

amendments streamlining the Competition Tribunal process by providing for cost awards,

summary dispositions and references;

amendments broadening the scope under which the Tribunal may issue temporary orders; and

some housekeeping items.

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

R.S., c. 19, (2nd Supp.), s. 24; 1999, c. 2, par. 37( d )

Paragraph 11(1)(

b) of the Competition Act is replaced by the following:

(

b) produce to the Commissioner or the authorized representative of the Commissioner within a time and at a place specified in the order, a record, a copy of a record certified by affidavit to be a true copy, or any other thing, specified in the order; or

Section 18 of the Act is amended by adding the following after subsection (1):

Certified copies

(1.1) The Commissioner need not return any copy of a record produced pursuant to

section 11.

2.1

(1) Subsection 29(1) of the Act is amended by striking out the word “or” at the end of paragraph ( c ), by adding the word “or” at the end of paragraph (

d) and by adding the following after paragraph ( d ):

(

e) any information provided voluntarily pursuant to this Act.

R.S., c. 19 (2nd Supp.), s. 26

(2) Subsection 29(2) of the Act is replaced by the following:

Exception

(2) This

section does not apply in respect of any information that has been made public or any information the communication of which was authorized by the person who provided the information.

The Act is amended by adding the following before the heading “PART IV”:

PART III

MUTUAL LEGAL ASSISTANCE

Interpretation

Definitions

The

definitions in this

section apply in this Part.

agreement

accord

agreement means a treaty, convention or other international agreement to which Canada is a party that provides for mutual legal assistance in competition matters, other than a matter in respect of which the Mutual Legal Assistance in Criminal Matters Act applies.

conduct

comportement

conduct means conduct or matters within the meaning of the relevant agreement in respect of which mutual legal assistance may be requested in accordance with this Part.

data

données

data means representations, in any form, of information or concepts.

foreign state

État étranger

foreign state means a country other than Canada, and includes any international organization of states.

judge

juge

judge means

(

a) in Ontario, a judge of the Superior Court of Justice;

(

b) in Quebec, a judge of the Superior Court;

(

c) in Nova Scotia, British Columbia, Newfoundland, the Yukon Territory and the Northwest Territories, a judge of the Supreme Court, and in Nunavut, a judge of the Nunavut Court of Justice;

(

d) in New Brunswick, Manitoba, Saskatchewan and Alberta, a judge of the Court of Queen’s Bench;

(

e) in Prince Edward Island, a judge of the trial division of the Supreme Court; and

(

f) in any province or territory, a judge of the Federal Court — Trial Division.

Functions of the Minister of Justice

Agreements respecting mutual legal assistance

30.01

Before Canada enters into an agreement, the Minister of Justice must be satisfied that

(

a) the laws of the foreign state that address conduct that is similar to conduct prohibited or reviewable under this Act are, in his or her opinion, substantially similar to the relevant provisions of this Act, regardless of whether the conduct is dealt with criminally or otherwise;

(

b) any record or thing provided by Canada under the agreement will be protected by laws respecting confidentiality that are, in his or her opinion, substantially similar to Canadian laws;

(

c) the agreement contains provisions in respect of

(

i) the circumstances in which Canada may refuse, in whole or in part, to approve a request, and

(ii)

the confidentiality protections that will be afforded to any record or thing provided by Canada;

(

d) the agreement contains the following undertakings by the foreign state, namely,

(

i) that it will provide assistance to Canada comparable in scope to that provided by Canada,

(ii)

that any record or thing provided by Canada will be used only for the purpose for which it was requested,

(iii)

that any record or thing provided by Canada will be used subject to any terms and conditions on which it was provided, including conditions respecting applicable rights or privileges under Canadian law,

(iv)

that, at the conclusion of the investigation or proceedings in respect of which any record or thing was provided by Canada, the foreign state will return the record or thing and any copies to Canada or, with the consent of Canada, return the record or thing to Canada and destroy any copies,

(

v) subject to subparagraph (ii), that it will, to the greatest extent possible consistent with its laws, keep confidential any record or thing obtained by it pursuant to its request, and oppose any application by a third party for disclosure of the record or thing, and

(vi)

that it will promptly notify the Minister of Justice in the event that the confidentiality protections contained in the agreement have been breached; and

(

e) the agreement contains a provision in respect of the manner in which it may be terminated.

Publication of Agreements

Publication in Canada Gazette

30.02

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

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 the agreement comes into force.

Judicial notice

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

Requests Made to Canada from Abroad

Requests

Requests

30.03

The Minister of Justice is responsible for dealing with a request made by a foreign state under an agreement, in accordance with the agreement and this Part.

Search and Seizure

Application of sections 15, 16 and 19

30.04

Sections 15, 16 and 19 apply, with any modifications that the circumstances require, in respect of a search or a seizure under this Part, except to the extent that those sections are inconsistent with this Part.

Approval of request for search and seizure

30.05

(1) If the Minister of Justice approves a request of a foreign state to have a search and seizure carried out in respect of conduct that is the subject of the request, the Minister of Justice shall provide the Commissioner with any documents or information necessary to apply for a search warrant.

Application for search warrant

(2) The Commissioner or the authorized representative of the Commissioner shall apply ex parte for a search warrant to a judge.

Warrant for entry of premises

30.06

(1) A judge to whom an application is made under subsection 30.05(2) may issue a search warrant authorizing the person named in it to execute it anywhere in Canada where the judge is satisfied by information on oath or solemn affirmation that there are reasonable grounds to believe that

(

a) conduct that is the subject of a request made by a foreign state is taking place, has taken place or is about to take place;

(

b) evidence in respect of the conduct referred to in paragraph (

a) will be found in any premises; and

(

c) it would not, in the circumstances, be appropriate to make an order under subsection 30.11(1).

Authorization

(2) A search warrant issued under subsection (1) authorizes the person named in it to enter the premises specified in the warrant, subject to any conditions that may be specified in the warrant, and to search the premises for any record or thing specified in the warrant and to examine and seize it.

Hearing re execution

(3) A judge who issues a search warrant under subsection (1) shall fix a time and place for a hearing to consider the execution of the warrant as well as the report referred to in

section 30.07.

Contents of warrant

(4) A search warrant issued under subsection (1) must

(

a) set out the time and place for the hearing mentioned in subsection (3);

(

b) state that, at that hearing, an order will be sought for the sending to the foreign state of the records or things seized in execution of the warrant; and

(

c) state that every person from whom a record or thing is seized in execution of the warrant and any person who claims to have an interest in a record or thing so seized may make representations at the hearing before any order is made concerning the record or thing.

Duty of persons in control of premises

(5) Every person who is in possession or control of any premises, record or thing in respect of which a search warrant is issued under subsection (1) shall, on presentation of the warrant, permit the person named in the warrant to enter the premises, search the premises and examine the record or thing and seize it.

Where admission or access refused

(6) Where a person, in executing a search warrant issued under subsection (1), is refused access to any premises, record or thing or where the Commissioner believes on reasonable grounds that access will be refused, the judge who issued the warrant or a judge of the same court, on the ex parte application of the Commissioner or the authorized representative of the Commissioner, may by order direct a peace officer to take any steps that the judge considers necessary to give access to the person named in the warrant.

Report

30.07

(1) The person who executes a search warrant shall, at least five days before the time of the hearing to consider its execution, file with the court of which the judge who issued the warrant is a member a written report concerning the execution of the warrant that includes a general description of the records or things seized.

Copy to Minister of Justice

(2) The person who files the report under subsection (1) shall send a copy of it to the Minister of Justice promptly after its filing.

Sending abroad

30.08

(1) At the hearing referred to in subsection 30.06(3), after having considered any representations of the Minister of Justice, the Commissioner, the person from whom a record or thing was seized and any person who claims to have an interest in the record or thing, the judge who issued the search warrant or another judge of the same court may

(

a) where the judge is not satisfied that the warrant was executed according to its terms and conditions or where the judge is satisfied that an order should not be made under paragraph ( b ), order that a record or thing seized be returned to

(

i) the person from whom it was seized, if possession of it by that person is lawful, or

(ii)

the lawful owner or the person who is lawfully entitled to its possession, if the owner or that person is known and possession of the record or thing by the person from whom it was seized is unlawful; or

(

b) in any other case, order that a record or thing seized be sent to the foreign state mentioned in subsection 30.05(1) and include in the order any terms and conditions that the judge considers desirable, including terms and conditions

(

i) necessary to give effect to the request mentioned in that subsection,

(ii)

in respect of the preservation and return to Canada of any record or thing seized, and

(iii)

in respect of the protection of the interests of third parties.

Requiring record, etc., at hearing

(2) At the hearing mentioned in subsection (1), the judge may require that a record or thing seized be brought before him or her.

Terms and conditions

30.09

No record or thing seized that has been ordered under

section 30.08 to be sent to a foreign state shall be so sent until the Minister of Justice is satisfied that the foreign state has agreed to comply with any terms or conditions imposed in respect of the sending abroad of the record or thing.

Evidence for Use Abroad

Approval of request to obtain evidence

30.1

(1) If the Minister of Justice approves a request of a foreign state to obtain, by means of an order of a judge, evidence in respect of conduct that is the subject of the request, the Minister of Justice shall provide the Commissioner with any documents or information necessary to apply for the order.

Application for order

(2) The Commissioner or the authorized representative of the Commissioner shall apply ex parte to a judge for an order for the gathering of evidence.

Evidence-gathering order

30.11

(1) A judge to whom an application is made under subsection 30.1(2) may make an order for the gathering of evidence where the judge is satisfied that there are reasonable grounds to believe that

(

a) conduct that is the subject of a request made by a foreign state is taking place, has taken place or is about to take place; and

(

b) there will be found in Canada evidence in respect of the conduct referred to in paragraph ( a ).

Provisions of order

(2) An order made under subsection (1) must provide for the manner in which the evidence is to be obtained in order to give effect to the request mentioned in subsection 30.1(1) and may

(

a) order the examination, on oath or otherwise, of a person named in the order, order the person to attend at the place fixed by the person designated under paragraph (

c) for the examination and to remain in attendance until he or she is excused by the person so designated, order the person so named, where appropriate, to make a copy of a record or to make a record from data and to bring the copy or record with him or her, and order the person so named to bring with him or her any record or thing in his or her possession or control, in order to produce them to the person before whom the examination takes place;

(

b) order a person named in the order to make a copy of a record or to make a record from data and to produce the copy or record to the person designated under paragraph ( c ), order the person to produce any record or thing in his or her possession or control to the person so designated and provide, where appropriate, for any affidavit or certificate that, pursuant to the request, is to accompany any copy, record or thing so produced; and

(

c) designate a person before whom the examination referred to in paragraph (

a) is to take place or to whom the copies, records, things, affidavits and certificates mentioned in paragraph (

b) are to be produced.

Designation of judge

(3) For greater certainty, a judge who makes an order under subsection (1) may designate himself or herself or another person, including a judge of a Canadian or foreign court, under paragraph (2)( c ).

Order effective throughout Canada

(4) An order made under subsection (1) may be executed anywhere in Canada.

Terms and conditions of order

(5) An order made under subsection (1) may include any terms or conditions that the judge considers desirable, including those relating to the protection of the interests of a person named in the order and of third parties.

Variation

(6) The judge who made the order under subsection (1) or another judge of the same court may vary its terms and conditions.

Other laws to apply

(7) A person named in an order made under subsection (1) shall answer questions and produce records or things to the person designated under paragraph (2)(

c) in accordance with the laws of evidence and procedure in the foreign state that presented the request, but may refuse if answering the questions or producing the records or things would disclose information that is protected by the Canadian law of non-disclosure of information or privilege.

Execution of order to be completed

(8) If a person refuses to answer a question or to produce a record or thing, the person designated under paragraph (2)( c )

(

a) may, if he or she is a judge of a Canadian or foreign court, make immediate rulings on any objections or issues within his or her jurisdiction; or

(

b) shall, in any other case, continue the examination and ask any other question or request the production of any other record or thing mentioned in the order.

Statement of reasons for refusal

(9) A person named in an order made under subsection (1) who, under subsection (7), refuses to answer one or more questions or to produce certain records or things shall, within seven days, give to the person designated under paragraph (2)( c ), unless that person has already ruled on the objection under paragraph (8)( a ), a detailed statement in writing of the reasons on which the person bases the refusal to answer each question that the person refuses to answer or to produce each record or thing that the person refuses to produce.

Expenses

(10) A person named in an order made under subsection (1) is entitled to be paid the travel and living expenses to which the person would be entitled if the person were required to attend as a witness before the judge who made the order.

Contents of order

(11) An order made under subsection (1) must state that a person named in the order, and any person who claims an interest in any record or thing provided pursuant to the order, may make representations referred to in subsection 30.13(2) before any order is made under subsection 30.13(1).

Report

30.12

(1) A person designated under paragraph 30.11(2)(

c) in an order made under subsection 30.11(1) shall make a report to the judge who made the order, or another judge of the same court, accompanied by

(

a) a transcript of every examination held under the order;

(

b) a general description of every record or thing produced to the person under the order and, if the judge so requires, a record or thing itself; and

(

c) a copy of every statement given under subsection 30.11(9) of the reasons for a refusal to answer any question or to produce any record or thing.

Copy to Minister of Justice

(2) The person designated under paragraph 30.11(2)(

c) shall send a copy of the report to the Minister of Justice promptly after it is made.

Refusals

(3) If any reasons contained in a statement given under subsection 30.11(9) are based on the Canadian law of non-disclosure of information or privilege, a judge to whom a report is made shall determine whether those reasons are well-founded and, if the judge determines that they are, that determination shall be mentioned in any order that the judge makes under

section 30.13, but if the judge determines that they are not, the judge shall order that the person named in the order made under subsection 30.11(1) answer the questions or produce the records or things.

Refusals based on foreign law

(4) A copy of every statement given under subsection 30.11(9) that contains reasons that purport to be based on a law that applies to the foreign state shall be appended to any order that the judge makes under

section 30.13.

Sending abroad

30.13

(1) A judge to whom a report is made under subsection 30.12(1) may order that there be sent to the foreign state mentioned in subsection 30.1(1)

(

a) the report, any transcript referred to in paragraph 30.12(1)(

a) and any record or thing produced;

(

b) a copy of the order made under subsection 30.11(1) accompanied by a copy of any statement given under subsection 30.11(9) that contains reasons that purport to be based on a law that applies to the foreign state; and

(

c) any determination made under subsection 30.12(3) that the reasons contained in a statement given under subsection 30.11(9) are well-founded.

Terms and conditions

(2) An order made under subsection (1) may include any terms or conditions that the judge considers desirable, after having considered any representations of the Minister of Justice, the Commissioner, the person who produced any record or thing to the person designated under paragraph 30.11(2)(

c) and any person who claims to have an interest in any record or thing so produced, including terms and conditions

(

a) necessary to give effect to the request mentioned in subsection 30.1(1);

(

b) in respect of the preservation and return to Canada of any record or thing so produced; and

(

c) in respect of the protection of the interests of third parties.

Further execution

(3) The execution of an order made under subsection 30.11(1) that was not completely executed because of a refusal, by reason of a law that applies to the foreign state, to answer one or more questions or to produce certain records or things to the person designated under paragraph 30.11(2)(

c) may be continued, unless a ruling has already been made on the objection under paragraph 30.11(8)( a ), if a court of the foreign state or a person designated by the foreign state determines that the reasons are not well-founded and the foreign state so advises the Minister of Justice.

Leave of judge required

(4) No person named in an order made under subsection 30.11(1) whose reasons for refusing to answer a question or to produce a record or thing are determined not to be well-founded, or whose objection has been ruled against under paragraph 30.11(8)( a ), shall, during the continued execution of the order or ruling, refuse to answer that question or to produce that record or thing to the person designated under paragraph 30.11(2)( c ), except with the permission of the judge who made the order or ruling or another judge of the same court.

Terms and conditions

30.14

No record or thing that has been ordered under

section 30.13 to be sent to the foreign state mentioned in subsection 30.1(1) shall be so sent until the Minister of Justice is satisfied that the foreign state has agreed to comply with any terms or conditions imposed in respect of the sending abroad of the record or thing.

Approval of request to obtain evidence by video link, etc.

30.15

(1) If the Minister of Justice approves a request of a foreign state to compel a person to provide evidence or a statement in respect of conduct that is the subject of the request by means of technology that permits the virtual presence of the person in the territory over which the foreign state has jurisdiction, or that permits the person to be heard and examined, the Minister of Justice shall provide the Commissioner with any documents or information necessary to apply for the order.

Application for order

(2) The Commissioner or the authorized representative of the Commissioner shall apply ex parte to a judge for an order for the taking of evidence or a statement from the person.

Order for video link, etc.

30.16

(1) A judge to whom an application is made under subsection 30.15(2) may make an order for the taking of evidence or a statement from a person where the judge is satisfied that there are reasonable grounds to believe that

(

a) conduct that is the subject of a request made by a foreign state is taking place, has taken place or is about to take place; and

(

b) the foreign state believes that the person’s evidence or statement would be relevant to the investigation or proceedings in respect of the conduct referred to in paragraph ( a ).

Provisions of order

(2) An order made under subsection (1) shall order the person

(

a) to attend at the place fixed by the judge for the taking of the evidence or statement by means of the technology and to remain in attendance until the person is excused by the authorities of the foreign state;

(

b) to answer any questions put to the person by the authorities of the foreign state or by any person authorized by those authorities;

(

c) to make a copy of a record or to make a record from data and to bring the copy or record, when appropriate; and

(

d) to bring any record or thing in his or her possession or control, when appropriate, in order to show it to the authorities by means of the technology.

Order effective throughout Canada

(3) An order made under subsection (1) may be executed anywhere in Canada.

Terms and conditions of order

(4) An order made under subsection (1) may include any terms or conditions that the judge considers desirable, including those relating to the protection of the interests of the person named in it and of third parties.

Variation

(5) The judge who made the order under subsection (1) or another judge of the same court may vary its terms and conditions.

Expenses

(6) A person named in an order made under subsection (1) is entitled to be paid the travel and living expenses to which the person would be entitled if the person were required to attend as a witness before the judge who made the order.

Other laws to apply

30.17

(1) When a person gives evidence or a statement pursuant to an order made under subsection 30.16(1), the person shall give the evidence or statement as though he or she were physically before the court or tribunal outside Canada, in accordance with the laws of evidence and procedure applicable to that court or tribunal, but may refuse to give evidence or a statement, in whole or in part, if giving the evidence or statement would disclose information that is protected by the Canadian law of non-disclosure of information or privilege.

Statement of reasons for refusal

(2) A person named in an order made under subsection 30.16(1) who refuses to give evidence or a statement on the grounds that it would disclose information that is protected by the Canadian law of non-disclosure of information or privilege shall, within seven days, give to the judge who made the order or another judge of the same court a detailed statement in writing of the reasons on which the person bases each refusal.

Refusals

(3) A judge to whom a statement is given under subsection (2) shall determine whether the reasons for refusal are well-founded and, if the judge determines that they are not, the judge shall order that the person named in the order made under subsection 30.16(1) give the evidence or statement.

Contempt of court in Canada

(4) When a witness gives evidence under

section 30.16, the Canadian law relating to contempt of court applies with respect to a refusal by the person to answer a question or to produce a record or thing as ordered by the judge under that section.

Arrest warrant

30.18

(1) The judge who made the order under subsection 30.11(1) or 30.16(1) or another judge of the same court may issue a warrant for the arrest of the person named in the order where the judge is satisfied, on an information in writing and under oath or solemn declaration, that

(

a) the person did not attend or remain in attendance as required by the order or is about to abscond;

(

b) the order was personally served on the person; and

(

c) in the case of an order made under subsection 30.11(1), the person is likely to give material evidence and, in the case of an order made under subsection 30.16(1), the foreign state believes that the testimony of the person would be relevant to the investigation or proceedings in respect of the conduct.

Warrant effective throughout Canada

(2) A warrant issued under subsection (1) may be executed anywhere in Canada by any peace officer.

Order

(3) A peace officer who arrests a person in execution of a warrant issued under subsection (1) shall, without delay, bring the person or cause the person to be brought before the judge who issued the warrant or another judge of the same court who may, to ensure compliance with the order made under subsection 30.11(1) or 30.16(1), order that the person be detained in custody or released on recognizance, with or without sureties.

Copy of information

(4) A person who is arrested in execution of a warrant issued under subsection (1) is entitled to receive, on request, a copy of the information on which the warrant was issued.

Lending Exhibits

Approval of loan request

30.19

(1) If the Minister of Justice approves a request of a foreign state under an agreement to have an exhibit that was admitted in evidence in a proceeding in respect of an offence in a court in Canada or in a proceeding before the Tribunal lent to the foreign state, the Minister shall provide the Commissioner with any documents or information necessary to apply for a loan order.

Application for loan order

(2) The Commissioner or the authorized representative of the Commissioner shall apply for a loan order in respect of the exhibit to the court that has possession of the exhibit, or to the Tribunal if it has possession of the exhibit, after having given reasonable notice to the parties to the proceedings and to

(

a) the Attorney General of Canada, in the case of an application to the Federal Court;

(

b) the attorney general of the province in which the exhibit is located, in the case of an application to a court other than the Federal Court; or

(

c) the Chairman of the Tribunal, in the case of an application to the Tribunal.

Contents of application

(3) An application made under subsection (2) must

(

a) contain a description of the exhibit requested to be lent;

(

b) designate a person or class of persons to whom the exhibit is sought to be given;

(

c) state the reasons for the request and, if any tests are sought to be performed on the exhibit, contain a description of the tests and a statement of the place where they will be performed;

(

d) state the place or places to which the exhibit is sought to be removed; and

(

e) specify the time at or before which the exhibit is to be returned.

Making of loan order

30.2

(1) If the court or the Tribunal, as the case may be, is satisfied that the foreign state has requested the loan for a fixed period and has agreed to comply with the terms and conditions that the court or Tribunal proposes to include in any loan order, the court or Tribunal may, after having considered any representations of the persons to whom notice of the application was given in accordance with subsection 30.19(2), make a loan order.

Terms of loan order

(2) A loan order made under subsection (1) must

(

a) contain a description of the exhibit;

(

b) order the person who has possession of the exhibit to give it to a person designated in the order or who is a member of a class of persons so designated;

(

c) contain a description of any tests authorized to be performed on the exhibit, as well as a statement of the place where the tests must be performed;

(

d) fix the place or places to which the exhibit may be removed; and

(

e) fix the time at or before which the exhibit must be returned.

Terms and conditions

(3) A loan order made under subsection (1) may include any terms or conditions that the court or the Tribunal considers desirable, including those relating to the preservation of the exhibit.

Variation of loan order

30.21

A court or the Tribunal may vary the terms and conditions of any loan order made by it.

Copy of order to custodian

30.22

A copy of a loan order and of an order varying it shall be delivered by the Commissioner to the Minister of Justice and to the person who had possession of the exhibit when the loan order was made.

Presumption of continuity

30.23

The burden of proving that an exhibit lent to a foreign state pursuant to a loan order made under subsection 30.2(1) and returned to Canada is not in the same condition as it was when the loan order was made or that it was tampered with after the loan order was made is on the party who makes that allegation and, in the absence of that proof, the exhibit is deemed to have been continuously in the possession of the court that made the loan order or the Tribunal, as the case may be.

Appeal

Appeal on question of law

30.24

(1) An appeal lies, with leave, on a question of law alone, to the court of appeal, within the meaning of

section 2 of the Criminal Code , from an order or decision of a judge or a court in Canada made under this Part, other than an order or decision of the Federal Court — Trial Division or a judge of that Court, if the application for leave to appeal is made to a judge of the court of appeal within fifteen days after the order or decision.

Appeal on question of law

(2) An appeal lies, with leave, on a question of law alone, to the Federal Court of Appeal, from any order or decision of the Federal Court — Trial Division or the Tribunal made under this Part, if the application for leave to appeal is made to a judge of that Court within fifteen days after the order or decision.

Evidence Obtained by Canada from Abroad

Evidence

30.25

The Minister of Justice shall, on receiving evidence sent by a foreign state in response to a request made by Canada under an agreement, send it promptly to the Commissioner.

Foreign records

30.26

(1) In a proceeding in respect of which Parliament has jurisdiction, a record or a copy of a record and any affidavit, certificate or other statement pertaining to the record made by a person who has custody or knowledge of the record, sent to the Minister of Justice by a foreign state in accordance with a Canadian request under an agreement, is not inadmissible in evidence by reason only that a statement contained in it is hearsay or a statement of opinion.

Probative value

(2) For the purpose of determining the probative value of a record or a copy of a record admitted in evidence under

Part VII.1 or VIII, the court hearing the matter, or the Tribunal in proceedings before it, may examine the record or copy, receive evidence orally or by affidavit, or by a certificate or other statement pertaining to the record in which a person attests that the certificate or statement is made in conformity with the laws that apply to a foreign state, whether or not the certificate or statement is in the form of an affidavit attested to before an official of the foreign state, including evidence as to the circumstances in which the information contained in the record or copy was written, stored or reproduced, and may draw any reasonable inference from the form or content of the record or copy.

Foreign things

30.27

In a proceeding in respect of which Parliament has jurisdiction, a thing and any affidavit, certificate or other statement pertaining to the thing made by a person in a foreign state as to the identity and possession of the thing from the time it was obtained until its sending to the Commissioner by the Minister of Justice in accordance with a Canadian request under an agreement, are not inadmissible in evidence by reason only that the affidavit, certificate or other statement contains hearsay or a statement of opinion.

Status of certificate

30.28

An affidavit, certificate or other statement mentioned in

section 30.26 or 30.27 is, in the absence of evidence to the contrary, proof of the statements contained in it without proof of the signature or official character of the person appearing to have signed it.

General

Confidentiality of foreign requests and evidence

30.29

(1) No person who performs or has performed duties or functions in the administration or enforcement of this Act shall communicate or allow to be communicated to any other person, except for the purposes of the administration or enforcement of this Act,

(

a) the contents of a request made to Canada from a foreign state or the fact of the request having been made; or

(

b) the contents of any record or thing obtained from a foreign state pursuant to a Canadian request.

Confidentiality of Canadian evidence

(2) No person who performs or has performed duties or functions in the administration or enforcement of this Act shall communicate or allow to be communicated to any other person, except to a Canadian law enforcement agency or for the purposes of the administration or enforcement of this Act, any information obtained under

section 30.06 or 30.11.

Exception

(3) This

section does not apply in respect of any information that has been made public.

Records or other things already in Commissioner’s possession

30.291

(1) For greater certainty, any evidence requested by a foreign state under an agreement may be obtained for the purposes of giving effect to the request only in accordance with the agreement and the procedure set out in this Part, even in the case of records or other things already in the possession of the Commissioner.

Exception

(2) This

section does not apply in respect of any information that has been made public or any information the communication of which was authorized by the person who provided the information.

Preservation of informal arrangements

30.3

Nothing in this Part shall be construed so as to abrogate or derogate from any arrangement or agreement, other than an agreement under this Part, in respect of cooperation between the Commissioner and a foreign authority.

1990, c. 37, s. 29

Subsection 32(3) of the French version of the Act is replaced by the following:

Traités

(3) Ces ordonnances ne peuvent être rendues que si elles sont compatibles avec les traités, conventions, arrangements ou engagements concernant des brevets d’invention, des marques de commerce, des droits d’auteur ou des topographies de circuits intégrés conclus avec tout pays étranger et auxquels le Canada est partie.

1999, c. 2, s. 10(1)

(1) The portion of paragraph 33(1)(

b) of the Act before subparagraph (

i) is replaced by the following:

(

b) in the case of an offence under

section 52.1 or 53, if the offence is committed or continued,

1999, c. 2, s. 10(1)

(2) Subparagraph 33(1)( b )(ii) of the Act is replaced by the following:

(ii)

one or more persons are likely to suffer damage from the commission of the offence that will be substantially greater than any damage that persons named in the application are likely to suffer from an injunction issued under this subsection in the event that it is subsequently found that an offence under

section 52.1 or 53 has not been committed, was not about to be committed and was not likely to be committed.

1999, c. 2, s. 10(1)

(3) The portion of subsection 33(1.1) of the Act before paragraph (

b) is replaced by the following:

Deceptive telemarketing or notice

(1.1) An injunction issued in respect of an offence under

section 52.1 or 53 may forbid any person from supplying to another person a product that is or is likely to be used for the commission or continuation of such an offence, where the person being supplied or, in the case of a corporation, any of its officers or directors was previously

(

a) convicted of an offence under

section 52.1 or 53 or an offence under

section 52 in respect of conduct prohibited by

section 52.1 or 53; or

The Act is amended by adding the following after

section 52.1:

Deceptive notice of winning a prize

(1) No person shall, for the purpose of promoting, directly or indirectly, any business interest or the supply or use of a product, send or cause to be sent by electronic or regular mail or by any other means a document or notice in any form, if the document or notice gives the general impression that the recipient has won, will win, or will on doing a particular act win, a prize or other benefit, and if the recipient is asked or given the option to pay money, incur a cost or do anything that will incur a cost.

Non-application

(2) Subsection (1) does not apply if the recipient actually wins the prize or other benefit and the person who sends or causes the notice or document to be sent

(

a) makes adequate and fair disclosure of the number and approximate value of the prizes or benefits, of the area or areas to which they have been allocated and of any fact within the person’s knowledge that materially affects the chances of winning;

(

b) distributes the prizes or benefits without unreasonable delay; and

(

c) selects participants or distributes the prizes or benefits randomly, or on the basis of the participants’ skill, in any area to which the prizes or benefits have been allocated.

Due diligence

(3) No person shall be convicted of an offence under this

section who establishes that the person exercised due diligence to prevent the commission of the offence.

Offences by employees or agents

(4) In the prosecution of a corporation for an offence under this section, it is sufficient proof of the offence to establish that it was committed by an employee or agent of the corporation, whether or not the employee or agent is identified, unless the corporation establishes that the corporation exercised due diligence to prevent the commission of the offence.

Liability of officers and directors

(5) Where a corporation commits an offence under this section, any officer or director of the corporation who is in a position to direct or influence the policies of the corporation in respect of conduct prohibited by this

section is a party to and guilty of the offence and is liable to the punishment provided for the offence, whether or not the corporation has been prosecuted or convicted, unless the officer or director establishes that the officer or director exercised due diligence to prevent the commission of the offence.

Offence and punishment

(6) Any person who contravenes this

section is guilty of an offence and liable

(

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

(

b) on

summary conviction, to a fine not exceeding $200,000 or to imprisonment for a term not exceeding one year, or to both.

Sentencing

(7) In sentencing a person convicted of an offence under this section, the court shall consider, among other factors, the following aggravating factors:

(

a) the use of lists of persons previously deceived by the commission of an offence under

section 52.1 or this section;

(

b) the particular vulnerability of recipients of the notices or documents referred to in subsection (1) to abusive tactics;

(

c) the amount of the proceeds realized by the person from the commission of an offence under this section;

(

d) previous convictions of the person under

section 52 or 52.1 or this section; and

(

e) the manner in which information is conveyed, including the use of abusive tactics.

The Act is amended by adding the following after

section 65:

Contravention of subsection 30.06(5)

65.1

(1) Every person who, without good and sufficient cause, the proof of which lies on that person, contravenes subsection 30.06(5) is guilty of an offence and liable on

summary conviction or on conviction on indictment to a fine not exceeding $5,000 or to imprisonment for a term not exceeding two years, or to both.

Destruction or alteration of records or things

(2) Every person who destroys or alters, or causes to be destroyed or altered, any record or thing in respect of which a search warrant is issued under

section 30.06 or that is required to be produced pursuant to an order made under subsection 30.11(1) or 30.16(1) is guilty of an offence and liable

(

a) on conviction on indictment to a fine not exceeding $50,000 or to imprisonment for a term not exceeding five years, or to both; or

(

b) on

summary conviction to a fine not exceeding $25,000 or to imprisonment for a term not exceeding two years, or to both.

Refusal after objection overruled

65.2

(1) Every person who, without good and sufficient cause, the proof of which lies on that person, refuses to answer a question or to produce a record or thing to the person designated under paragraph 30.11(2)(

c) after a judge has ruled against the objection under paragraph 30.11(8)( a ), is guilty of an offence and liable on conviction on indictment or on

summary conviction to a fine not exceeding $5,000 or to imprisonment for a term not exceeding two years, or to both.

Refusal where no ruling made on objection

(2) Every person is guilty of an offence and liable on

summary conviction or on conviction on indictment to a fine not exceeding $5,000 or to imprisonment for a term not exceeding two years, or to both, who, without good and sufficient cause, the proof of which lies on that person, refuses to answer a question or to produce a record or thing to the person designated under paragraph 30.11(2)( c ), where no ruling has been made under paragraph 30.11(8)( a ),

(

a) without giving the detailed statement required by subsection 30.11(9); or

(

b) if the person was previously asked the same question or requested to produce the same record or thing and refused to do so and the reasons on which that person based the previous refusal were determined not to be well-founded by

(

i) a judge, if the reasons were based on the Canadian law of non-disclosure of information or privilege, or

(ii)

a court of the foreign state or by a person designated by the foreign state, if the reasons were based on a law that applies to the foreign state.

1999, c. 2, s. 21

Subsection 73(1) of the Act is replaced by the following:

Jurisdiction of Federal Court

(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, 52.1, 53, 55, 55.1 or 66, 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.

1999, c. 2, s. 22

Subsection 74.07(2) of the Act is replaced by the following:

Non-application

(2) Sections 74.01 to 74.06 do not apply in respect of conduct prohibited by sections 52.1, 53, 55 and 55.1.

1999, c. 2, s. 22

(1) Subsection 74.11(2) of the Act is replaced by the following:

Duration

(2) Subject to subsection (5), the order has effect, or may be extended on application by the Commissioner, for such period as the court considers necessary and sufficient to meet the circumstances of the case.

1999, c. 2, s. 22

(2) Subsection 74.11(5) of the Act is replaced by the following:

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.

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.

1999, c. 2, s. 22

Sections 74.12 and 74.13 of the Act are replaced by the following:

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.

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.

Registration

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

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.

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.

R.S., c. 19 (2nd Supp.), s. 45; 1999, c. 2, par. 37( w )

11.1

(1) The portion of subsection 75(1) of the Act before paragraph (

a) is replaced by the following:

Jurisdiction of Tribunal where refusal to deal

(1) Where, on application by the Commissioner or a person granted leave under

section 103.1, the Tribunal finds that

(2) Subsection 75(1) of the Act is amended by striking out the word “and” at the end of paragraph ( c ), by adding the word “and” at the end of paragraph (

d) and by adding the following after paragraph ( d ):

(

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

(3) Section 75 of the Act is amended by adding the following after subsection (3):

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.

R.S., c. 19, (2nd Supp.), s. 45; 1999, c. 2, par. 37( y )

11.2

(1) The portion of subsection 77(2) of the Act before paragraph (

a) is replaced by the following:

Exclusive dealing and tied selling

(2) Where, on application by the Commissioner or a person granted leave under

section 103.1, 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

R.S., c. 19, (2nd Supp.), s. 45; 1999, c. 2, par. 37( y )

(2) Subsection 77(3) of the Act is replaced by the following:

Market restriction

(3) Where, on application by the Commissioner or a person granted leave under

section 103.1, the Tribunal finds that market restriction, because it is engaged in by a major supplier of a product or because it is widespread in relation to a product, is likely to substantially lessen competition in relation to the product, 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 market restriction and containing any other requirement that, in its opinion, is necessary to restore or stimulate competition in relation to the product.

(3) Section 77 of the Act is amended by adding the following after subsection (6):

Inferences

(7) 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.

11.3

Section 77 of the Act is amended by adding the following after subsection (3):

Damage awards

(3.1) For greater certainty, the Tribunal may not make an award of damages under this

section to a person granted leave under subsection 103.1(7).

11.4

Section 79 of the Act is amended by adding the following after subsection (3):

Administrative monetary penalty

(3.1) Where the Tribunal makes an order under subsection (1) or (2) against an entity who operates a domestic service, as defined in subsection 55(1) of the Canada Transportation Act , it may also order the entity to pay, in such manner as the Tribunal may specify, an administrative monetary penalty in an amount not greater than $15 million.

Aggravating or mitigating factors

(3.2) In determining the amount of an administrative monetary penalty, the Tribunal shall take into account the following:

(

a) the frequency and duration of the practice;

(

b) the vulnerability of the class of persons adversely affected by the practice;

(

c) injury to competition in the relevant market;

(

d) the history of compliance with this Act by the entity; and

(

e) any other relevant factor.

Purpose of order

(3.3) The purpose of an order under subsection (3.1) is to promote practices that are in conformity with this section, not to punish.

11.5

The Act is amended by adding the following after

section 79:

Unpaid monetary penalty

79.1

The amount of an administrative monetary penalty imposed on an entity under subsection 79(3.1) is a debt due to Her Majesty in right of Canada and may be recovered as such from that entity in a court of competent jurisdiction.

The Act is amended by adding the following before

section 104:

Leave to make application under

section 75 or 77

103.1

(1) Any person may apply to the Tribunal for leave to make an application under

section 75 or 77. The application for leave must be accompanied by an affidavit setting out the facts in support of the person’s application under

section 75 or 77.

Notice

(2) The applicant must serve a copy of the application for leave on the Commissioner and any person against whom the order under

section 75 or 77 is sought.

Certification by Commissioner

(3) The Commissioner shall, within 48 hours after receiving a copy of an application for leave, certify to the Tribunal whether or not the matter in respect of which leave is sought

(

a) is the subject of an inquiry by the Commissioner; or

(

b) was the subject of an inquiry that has been discontinued because of a settlement between the Commissioner and the person against whom the order under

section 75 or 77 is sought.

Application discontinued

(4) The Tribunal shall not consider an application for leave respecting a matter described in paragraph (3)(

a) or (

b) or a matter that is the subject of an application already submitted to the Tribunal by the Commissioner under

section 75 or 77.

Notice by Tribunal

(5) The Tribunal shall as soon as practicable after receiving the Commissioner’s certification under subsection (3) notify the applicant and any person against whom the order is sought as to whether it can hear the application for leave.

Representations

(6) A person served with an application for leave may, within 15 days after receiving notice under subsection (5), make representations in writing to the Tribunal and shall serve a copy of the representations on any other person referred to in subsection (2).

Granting leave to make application under

section 75 or 77

(7) The Tribunal may grant leave to make an application under

section 75 or 77 if it has reason to believe that the applicant is directly and substantially affected in the applicants’ business by any practice referred to in one of those sections that could be subject to an order under that section.

Time and conditions for making application

(8) The Tribunal may set the time within which and the conditions subject to which an application under

section 75 or 77 must be made. The application must be made no more than one year after the practice that is the subject of the application has ceased.

Decision

(9) The Tribunal must give written reasons for its decision to grant or refuse leave and send copies to the applicant, the Commissioner and any other person referred to in subsection (2).

Limitation

(10) The Commissioner may not make an application for an order under

section 75, 77 or 79 on the basis of the same or substantially the same facts as are alleged in a matter for which the Tribunal has granted leave under subsection (7), if the person granted leave has already applied to the Tribunal under

section 75 or 77.

Inferences

(11) In considering an application for leave, 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 it.

Inquiry by Commissioner

(12) If the Commissioner has certified under subsection (3) that a matter in respect of which leave was sought by a person is under inquiry and the Commissioner subsequently discontinues the inquiry other than by way of settlement, the Commissioner shall, as soon as practicable, notify that person that the inquiry is discontinued.

Intervention by Commissioner

103.2

If a person granted leave under subsection 103.1(7) makes an application under

section 75 or 77, the Commissioner may intervene in the proceedings.

Interim order

103.3

(1) Subject to subsection (2), the Tribunal may, on ex parte application by the Commissioner in which the Commissioner certifies that an inquiry is being made under paragraph 10(1)( b ), issue an interim order

(

a) to prevent the continuation of conduct that could be the subject of an order under any of sections 75 to 77, 79, 81 or 84; or

(

b) to prevent the taking of measures under

section 82 or 83.

Limitation

(2) The Tribunal may make the interim order if it finds that the conduct or measures could be of the type described in paragraph (1)(

a) or (

b) and that, in the absence of an interim order,

(

a) injury to competition that cannot adequately be remedied by the Tribunal is likely to occur;

(

b) a person is likely to be eliminated as a competitor; or

(

c) a person is likely to suffer a significant loss of market share, a significant loss of revenue or other harm that cannot be adequately remedied by the Tribunal.

Consultation

(3) Before making an application for an order to prevent the continuation of conduct that could be the subject of an order under any of sections 75 to 77, 79, 81 or 84 by an entity incorporated under the Bank Act , the Insurance Companies Act , the Trust and Loan Companies Act or the Cooperative Credit Associations Act or a subsidiary of such an entity, the Commissioner must consult with the Minister of Finance respecting the safety and soundness of the entity.

Duration

(4) Subject to subsections (5) and (6), an interim order has effect for 10 days, beginning on the day on which it is made.

Extension or revocation of order

(5) The Tribunal may, on application by the Commissioner on 48 hours notice to each person against whom the interim order is directed,

(

a) extend the interim order once or twice for additional periods of 35 days each; or

(

b) rescind the order.

Application to Tribunal for extension

(5.1) The Commissioner may, before the expiry of the second 35-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 interim order.

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 interim order is made.

Extension of interim order

(5.3) The Tribunal may order that the effective period of the interim 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 during the initial period that the interim order had effect, within the first 35 days after an order extending the interim order under subsection (5) had effect, or within the first 35 days after an order extending the interim 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 any

section referred to in paragraph (1)(

a) or ( b ).

Terms

(5.4) An order extending an interim 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.

Effect of application

(5.5) If an application is made under subsection (5.1), the interim order has effect until the Tribunal makes a decision whether to grant an extension under subsection (5.3).

When application made to Tribunal

(6) If an application is made under subsection (7), an interim order has effect until the Tribunal makes an order under that subsection.

Confirming or setting aside interim order

(7) A person against whom the Tribunal has made an interim order may apply to the Tribunal in the first 10 days during which the order has effect to have it varied or set aside and the Tribunal shall

(

a) if it is satisfied that one or more of the situations set out in paragraphs (2)(

a) to (

c) existed or are likely to exist, make an order confirming the interim order, with or without variation as the Tribunal considers necessary and sufficient to meet the circumstances, and fix the effective period of that order for a maximum of 70 days, beginning on the day on which the order confirming the interim order is made; and

(

b) if it is not satisfied that any of the situations set out in paragraphs (2)(

a) to (

c) existed or is likely to exist, make an order setting aside the interim order.

Notice

(8) A person who makes an application under subsection (7) shall give the Commissioner 48 hours written notice of the application.

Representations

(9) At the hearing of an application under subsection (7), the Tribunal shall provide the applicant, the Commissioner and any person directly affected by the interim order with a full opportunity to present evidence and make representations before the Tribunal makes an order under that subsection.

Prohibition of extraordinary relief

(10) Notwithstanding

section 13 of the Competition Tribunal Act , an interim order shall not be appealed or reviewed in any court except as provided for by subsection (7).

Duty of Commissioner

(11) When an interim order is in effect, the Commissioner shall proceed as expeditiously as possible to complete the inquiry arising out of the conduct in respect of which the order was made.

R.S., c. 19 (2nd Supp.), s. 45; 1999, c. 2, par. 37( z.12 )

(1) Subsection 104(1) of the Act is replaced by the following:

Interim order

(1) Where an application has been made for an order under this Part, other than an interim order under

section 100 or 103.3, the Tribunal, on application by the Commissioner or a person who has made an application under

section 75 or 77, may issue such interim order as it considers appropriate, having regard to the principles ordinarily considered by superior courts when granting interlocutory or injunctive relief.

R.S., c. 19 (2nd Supp.), s. 45; 1999, c. 2, par. 37 ( z.12 )

(2) Subsection 104(3) of the Act is replaced by the following:

Duty of Commissioner

(3) Where an interim order issued under subsection (1) on application by the Commissioner is in effect, the Commissioner shall proceed as expeditiously as possible to complete proceedings under this Part arising out of the conduct in respect of which the order was issued.

13.1

Section 104.1 of the Act is amended by adding the following after subsection (5):

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.

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.

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.

Terms

(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.

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).

R.S., c. 19, (2nd Supp.), s. 45; 1999, c. 2, par. 37( z.13 )

Sections 105 and 106 of the Act are replaced by the following:

Consent agreement

(1) The Commissioner and a person in respect of whom the Commissioner has applied or may apply for an order under this Part, other than an interim order under

section 103.3 or a temporary order under

section 104.1, may sign a consent agreement.

Terms of consent agreement

(2) The consent agreement shall be based on terms that could be the subject of an order of the Tribunal against that person.

Registration

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

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 Tribunal.

Rescission or variation of consent agreement or order

(1) The Tribunal may rescind or vary a consent agreement or an order made under this Part other than an order under

section 103.3 or 104.1 or a consent agreement under

section 106.1, on application by the Commissioner or the person who consented to the agreement, or the person against whom the order was made, if the Tribunal 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.

Directly affected persons

(2) A person directly affected by a consent agreement, other than a party to that agreement, may apply to the Tribunal within 60 days after the registration of the agreement to have one or more of its terms rescinded or varied. The Tribunal may grant the application if it finds that the person has established that the terms could not be the subject of an order of the Tribunal.

Consent agreement — parties to a private action

106.1

(1) If a person granted leave under

section 103.1 makes an application to the Tribunal for an order under

section 75 or 77 and the terms of the order are agreed to by the person in respect of whom the order is sought and consistent with the provisions of this Act, a consent agreement may be filed with the Tribunal for registration.

Notice to Commissioner

(2) On filing the consent agreement with the Tribunal for registration, the parties shall serve a copy of it on the Commissioner without delay.

Publication

(3) The consent agreement shall be published without delay in the Canada Gazette .

Registration

(4) The consent agreement shall be registered 30 days after its publication unless a third party makes an application to the Tribunal before then to cancel the agreement or replace it with an order of the Tribunal.

Effect of registration

(5) Upon registration, the consent agreement has the same force and effect, and proceedings may be taken, as if it were an order of the Tribunal.

Commissioner may intervene

(6) On application by the Commissioner, the Tribunal may vary or rescind a registered consent agreement if it finds that the agreement has or is likely to have anti-competitive effects.

Notice

(7) The Commissioner must give notice of an application under subsection (6) to the parties to the consent agreement.

R.S., c. 19 (2nd Supp.), s. 45

The headings before

section 125 of the Act are replaced by the following:

PART X

GENERAL

Commissioner’s Opinions

Application for written opinion

124.1

(1) Any person may apply to the Commissioner, with supporting information, for an opinion on the applicability of any provision of this Act or the regulations to conduct or a practice that the applicant proposes to engage in, and the Commissioner may provide a written opinion for the applicant’s guidance.

Opinion binding

(2) If all the material facts have been submitted by or on behalf of an applicant for an opinion and they are accurate, a written opinion provided under this

section is binding on the Commissioner. It remains binding for so long as the material facts on which the opinion was based remain substantially unchanged and the conduct or practice is carried out substantially as proposed.

References to Tribunal

Reference if parties agree

124.2

(1) The Commissioner and a person who is the subject of an inquiry under

section 10 may by agreement refer to the Tribunal for determination any question of law, mixed law and fact, jurisdiction, practice or procedure, in relation to the application or

interpretation of

Part VII.1 or VIII, whether or not an application has been made under

Part VII.1 or VIII.

Reference by Commissioner

(2) The Commissioner may, at any time, refer to the Tribunal for determination a question of law, jurisdiction, practice or procedure, in relation to the application or

interpretation of Parts VII.1 to IX.

Reference by agreement of parties to a private action

(3) A person granted leave under

section 103.1 and the person against whom an order is sought under

section 75 or 77 may by agreement refer to the Tribunal for determination any question of law, or mixed law and fact, in relation to the application or

interpretation of

Part VIII, if the Tribunal grants them leave. They must send a notice of their application for leave to the Commissioner, who may intervene in the proceedings.

Reference procedure

(4) The Tribunal shall decide the questions referred to it informally and expeditiously, in accordance with any rules on references made under

section 16 of the Competition Tribunal Act .

Representations to Boards, Commissions or Other Tribunals

R.S., c. 19, (2nd Supp.),

Part I

COMPETITION TRIBUNAL ACT

Paragraph 3(2)(

a) of the Competition Tribunal Act is replaced by the following:

(

a) not more than six members to be appointed from among the judges of the Federal Court — Trial Division by the Governor in Council on the recommendation of the Minister of Justice; and

1999, c. 2, s. 41

16.1

Subsection 8(1) of the Act is replaced by the following:

Jurisdiction

(1) The Tribunal has jurisdiction to hear and dispose of all applications made under

Part VII.1 or VIII of the Competition Act and any related matters, as well as any matter under

Part IX of that Act that is the subject of a reference under subsection 124.2(2) of that Act.

The Act is amended by adding the following after

section 8:

Costs

8.1

(1) The Tribunal may award costs of proceedings before it in respect of reviewable matters under Parts VII.1 and VIII of the Competition Act on a final or interim basis, in accordance with the provisions governing costs in the Federal Court Rules, 1998 .

Payment

(2) The Tribunal may direct by whom and to whom any costs are to be paid and by whom they are to be taxed and allowed.

Award against the Crown

(3) The Tribunal may award costs against Her Majesty in right of Canada.

Costs adjudged to Her Majesty in right of Canada

(4) Costs adjudged to Her Majesty in right of Canada shall not be disallowed or reduced on taxation by reason only that counsel who earned the costs, or in respect of whose services the costs are charged, was a salaried officer of Her Majesty in right of Canada performing those services in the discharge of that counsel’s duty and remunerated for those services by salary, or for that or any other reason was not entitled to recover any costs from Her Majesty in right of Canada in respect of the services so rendered.

Amounts to Receiver General

(5) Any money or costs awarded to Her Majesty in right of Canada in a proceeding in respect of which this

section applies shall be paid to the Receiver General.

Section 9 of the Act is amended by adding the following after subsection (3):

Summary dispositions

(4) On a motion from a party to an application made under

Part VII.1 or VIII of the Competition Act , a judicial member may hear and determine the application in a

summary way, in accordance with any rules on

summary dispositions.

Decision

(5) The judicial member may dismiss the application in whole or in

part if the member finds that there is no genuine basis for it. The member may allow the application in whole or in

part if satisfied that there is no genuine basis for the response to it.

2000, c. 15. s. 16

Subsection 11(1) of the Act is replaced by the following:

Hearing of applications

(1) The Chairman of the Tribunal, sitting alone, or a judicial member designated by the Chairman, sitting alone, may hear and dispose of applications under subsection 4.1(2) or (4) or 100(1),

section 103.1 or 103.3 or subsection 104(1) or 104.1(7) of the Competition Act and any related matters.

COMING INTO FORCE

Coming into force

The provisions of this Act, and the provisions of any Act as enacted by this Act, come into force on a day or days to be fixed by order of the Governor in Council.