Canada issues Technical Bulletin on "Regulated" Conduct: Competition Bureau maintains a cautious approach
On June 29, 2006, the Competition Bureau (the Bureau) released the final version of its Technical Bulletin on "Regulated Conduct" (the Bulletin). The Bulletin outlines the Bureau's approach to enforcement of the Competition Act (the Act) in respect of conduct that is authorized or required by a federal, provincial or other law (i.e., the so-called "regulated conduct doctrine", or "RCD"). Given that the RCD operates to immunize certain conduct from the Act, and therefore narrows the Bureau's jurisdiction, it is perhaps not surprising that the Bulletin reflects a strict approach to the RCD's application. That said, the Bulletin notes that even if the RCD is not available in a given case, other defences, such as a lack of mens rea or official inducement of error, may apply to exempt conduct from the Act's application. In short, in cases where the RCD does not apply, the Bureau will still consider, using other tools of statutory interpretation, whether Parliament intended that the impugned conduct be exempt from the relevant provisions of the Act.
The RCD has been the subject of litigation - and indeed considerable controversy - in recent years. This controversy arose in part from a series of cases that appeared to have expanded the doctrine beyond its traditional limits, in particular by applying the RCD to:
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