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

Marginal note:Rescission or variation of consent agreement or order

• 106 (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 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.

• Marginal note: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may apply to the Tribunal within 60 days after the registration of the agreement to have one or more of its terms rescinded or varied.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.

Marginal note: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, 76, 77, 79 or 90.1 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.

• Marginal note: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.

• Marginal note:Publication

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

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note:Notice

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

Marginal note:Failure to comply with consent agreement

• 106.2 (1) If, on application by the Commissioner, the Tribunal 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 105(3) or 106.1(4), the Tribunal may

  • (a) prohibit the person from doing anything that, in the Tribunal’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 Tribunal 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 Tribunal 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 Tribunal 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:Service of agreement on Commissioner

• 106.3 (1) If a person granted leave under section 103.1 makes an application to the Tribunal for an order under section 75, 76, 77, 79 or 90.1 and the person discontinues the application by reason of having entered into an agreement with any other person, the parties to the agreement must serve a copy of it on the Commissioner within 10 days after the day on which it was entered into.

• Marginal note:Commissioner may intervene

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

• Marginal note:Notice

  (3) The Commissioner must give notice of an application under subsection (2) to the parties to the agreement.

Marginal note:Failure to serve

• 106.4 (1) If, on application by the Commissioner, the Tribunal determines that a person, without good and sufficient cause, the proof of which lies on the person, has failed to serve a copy of an agreement on the Commissioner in accordance with subsection 106.3(1), the Tribunal may

  • (a) order the person to serve the Commissioner with a copy of the agreement;

  • (b) issue an interim order prohibiting any person from doing anything that, in the Tribunal’s opinion, may constitute or be directed toward the implementation of the agreement;

  • (c) order the person to pay, in any manner that the Tribunal specifies, an administrative monetary penalty in an amount not exceeding $10,000 for each day on which they fail to serve a copy of the agreement on the Commissioner, determined by the Tribunal 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 Tribunal 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:Evidence

107 In determining whether or not to make an order under this Part, the Tribunal 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 Tribunal under this Act.

PART VIII.1Matters Reviewable by a Court

Definitions

Marginal note:Definitions

107.1 The following definitions apply in this Part:

court

court means the Federal Court or the superior court of a province. (tribunal)

reprisal action

reprisal action means an action taken by a person to penalize, punish, discipline, harass or disadvantage another person because of that person’s communications with the Commissioner or because that person has cooperated, testified or assisted, or has expressed an intention to cooperate, testify or assist in an investigation or proceeding under this Act. (représailles)

Reprisal Action

Marginal note:Prohibition orders

107.2 If, following an application by the Commissioner or a person directly and substantially affected by an alleged reprisal action, a court concludes that a person is engaging, has engaged or is likely to engage in a reprisal action, it may make an order prohibiting the person from engaging in that action.

Marginal note:Administrative Monetary Penalties

107.3 If the court makes an order against a person under section 107.2 on the basis that the person is engaging in or has engaged in a reprisal action, it may also order them to pay an administrative monetary penalty, in any manner that the court specifies, in an amount not exceeding

• (a) in the case of an individual, $750,000 and for each subsequent order, $1,000,000; or

• (b) in the case of a corporation, $10,000,000 and for each subsequent order, $15,000,000.

Marginal note:Purpose of order

107.4 The terms of an order made against a person under section 107.3 are to be determined with a view to promoting conduct by that person that is in conformity with the purposes of this Act and not with a view to punishment.

Marginal note:Aggravating or mitigating factors

107.5 Any evidence of the following shall be taken into account in determining the amount of an administrative monetary penalty under section 107.3:

• (a) the frequency and duration of the conduct;

• (b) the vulnerability of the class of persons likely to be adversely affected by the conduct;

• (c) the financial position of the person against whom the order is made;

• (d) the history of compliance with this Act by the person against whom the order is made; and

• (e) any other relevant factor.

Marginal note:Unpaid monetary penalty

107.6 The administrative monetary penalty imposed under section 107.3 is a debt due to His Majesty in right of Canada and may be recovered as such from that person in a court of competent jurisdiction.

PART IXNotifiable Transactions

Interpretation

Marginal note:Definitions

• 108 (1) In this Part,

  equity interest

  equity interest means

  • (a) in the case of a corporation, a share in the corporation; and

  • (b) in the case of an entity other than a corporation, an interest that entitles the holder of that interest to receive profits of that entity or assets of that entity on its dissolution; (intérêt relatif à des capitaux propres)

  operating business

  operating business means a business undertaking in Canada to which employees employed in connection with the undertaking ordinarily report for work; (entreprise en exploitation)

  person

  person means an entity, an individual, a trustee, an executor, an administrator or a liquidator of the succession, an administrator of the property of others or a representative, but does not include a bare trustee or a trustee responsible exclusively for preserving and transferring the property of a person; (personne)

  prescribed

  prescribed means prescribed by regulations made under section 124; (réglementaire)

  voting share

  voting share means any share that carries voting rights under all circumstances or by reason of an event that has occurred and is continuing. (actions comportant droit de vote)

• Marginal note:Entities controlled by Her Majesty

  (2) For the purposes of this Part, except section 113, one entity is not affiliated with another entity by reason only of the fact that both entities are controlled by Her Majesty in right of Canada or a province, as the case may be.

• Marginal note:Computation of time

  (3) In this Part, a time period is calculated in accordance with sections 26 to 30 of the Interpretation Act except that the following days are also considered to be a holiday as defined in subsection 35(1) of that Act:

  • (a) Saturday;

  • (b) if Christmas Day falls on a Saturday or Sunday, the following Monday and Tuesday; and

  • (c) if another holiday falls on a Saturday or Sunday, the following Monday.

• Marginal note:Submission after 5:00 p.m.

  (4) For the purposes of this Part, anything submitted to the Commissioner after 5:00 p.m. (Eastern Time) is deemed to be received by the Commissioner on the next day that is not a holiday.

Application

Marginal note:General limit relating to parties

• 109 (1) This Part does not apply in respect of a proposed transaction unless the parties thereto, together with their affiliates,

  • (a) have assets in Canada that exceed four hundred million dollars in aggregate value, determined as of such time and in such manner as may be prescribed, or such greater amount as may be prescribed; or

  • (b) had gross revenues from sales in, from or into Canada, determined for such annual period and in such manner as may be prescribed, that exceed four hundred million dollars in aggregate value, or such greater amount as may be prescribed.

• Marginal note:Parties to acquisition of shares or interest

  (2) For the purposes of this Part,

  • (a) the parties to a proposed acquisition of shares are the person or persons who propose to acquire the shares and the corporation whose shares are to be acquired; and

  • (b) the parties to a proposed acquisition of an interest in a combination are the person or persons who propose to acquire the interest and the combination whose interest is to be acquired.