Competition Bureau

• On Aug. 28, the tribunal ruled that the commissioner’s approach to block the merger was “unreasonable,” although the Competition Bureau stands by its decision to challenge it.
• Since the costs will be covered by the Competition Bureau’s tax-funded budget, some think the commissioner was wrong to challenge the merger.
• Since winners typically get some of their legal costs covered, it was never a question of whether Rogers and Shaw would be awarded compensation, but how much.

How costs are calculated

• In competition cases, the tribunal has the final say on costs.
• To better understand the tribunal’s decision we need to distinguish between two categories of costs: disbursements and legal fees.
• Since tariffs have not kept pace with increasing legal costs, it has become more common for amounts to be calculated as a percentage of actual fees.
• Regardless of the method used, however, the reimbursement is meant to cover only some of the actual legal fees incurred.

The tribunal’s decision

• However, it’s important to put this part of the tribunal’s decision in perspective.
• Its impact on the $13 million total was very small, since the vast majority (about 94 per cent) of it was for disbursements, not legal fees.
• The tribunal also chose to impose the lower of two estimates that Rogers and Shaw proposed.
• “It was by no means vexatious or irresponsible of him to [continue to pursue the case].

Contested cases are uncertain

• Enforcement agencies like the Competition Bureau have a duty to pursue cases they consider to be well-founded and in the public interest.
• Fighting uphill battles that require sophisticated arguments, or test new theories, are part of the job.
• As people assess whether Boswell’s legacy should be continued, it’s important to base it on more than a few misunderstood lines in a judgment.

• Newmont continues advancing other regulatory approvals and expects to close the transaction in the fourth quarter of this year.
• Earlier this month, Korea’s Fair Trade Commission and Papua New Guinea’s (PNG) Independent Consumer & Competition Commission cleared the proposed acquisition.
• Newmont and Newcrest also continue engaging with the PNG Government and regulators about other approvals and clearances for the transaction.
• On May 14, Newmont announced its definitive agreement to acquire Newcrest.

• Canada Bread Company agreed to pay a $50 million fine on June 21 after pleading guilty to fixing the price of bread sold in grocery stores.
• This fine is the highest ever imposed for a cartel offence in Canada — more than seven times higher than the previous record.
• Instead, many questioned why the $50 million is going to the government and not to those who overpaid for bread.

A long time coming

• They claimed the scheme ran from 2001 to 2015 and involved major grocery chains and bakeries.
• As the first ones to co-operate with investigators, Loblaw was granted immunity from prosecution under the Competition Bureau’s Immunity and Leniency Program.

Why the government, not consumers?

• Exceptions are rare and the Canada Bread case did not fit any of them.
• Given these challenges, aggrieved consumers bring class actions in civil courts that have the expertise to handle complex liability matters.
• Two class actions are already underway against alleged bread cartel members, one in Québec and one in Ontario.
• If direct compensation to victims is best left to civil courts, what about using criminal fines to address social problems exacerbated by the crime?

Can fines be used to fund good works?

• They can provide alternatives to traditional fines and imprisonment and can be set up in legislation or be created by courts.
• But the idea of using fines to fix problems made worse by economic crime is catching on, such as a proposal to create an international development fund supported by fines from foreign corruption cases.
• These trends suggest that directing fines into a fund to support consumer issues, food banks or similar measures is possible, should the provinces be willing to set them up.

• GATINEAU, QC, Aug. 2, 2023 /CNW/ -The Federal Court of Appeal has dismissed a petition by Secure Energy Services, upholding the Competition Bureau's successful challenge of the merger of two rival suppliers of oilfield waste services.
• Secure's appeal looked to overturn a recent decision by the Competition Tribunal that ordered the company to sell 29 facilities to resolve ongoing harm to competition in Western Canada.
• The Tribunal concluded that there was a substantial lessening of competition in 136 local markets in the Western Canadian Sedimentary Basin (WCSB) as a result of Secure's merger with Tervita Corporation.
• In its decision, the Federal Court of Appeal found no merit in any of the issues raised by Secure in its appeal.