The Competitor : Canada Competition / Antitrust Blog by Stikeman Elliott Lawyers & Attorneys

Canada's Competition Bureau announced on November 21, 2008 that Akzo Nobel Chemicals International BV had pled guilty to criminal charges for fixing the price of hydrogen peroxide sold in Canada between 1998 and 2001, and agreed to pay a C$3.15 million fine.

Sales of the product in Canada during that period were approximately C$470 million, and Akzo Nobel accounted for approximately 5% of Canadian sales. The Bureau's release revealed that the company had cooperated in the investigation, and that the Bureau's investigation of the international conspiracy is ongoing.

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Susan M. Hutton

Canada's 40th Parliament opened on Wednesday, November 19, 2008 with the traditional Speech from the Throne, outlining the government's legislative priorities. In keeping with the turbulent economic times and with calls for greater supervision of business, the throne speech promised to "proceed with legislation to modernize our competition and investment laws, implementing many of the recommendations of the Competition Policy Review Panel."

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Jennifer MacArthur

Canada's Competition Bureau has published a revised Information Bulletin on Corporate Compliance Programs, in conjunction with the publication of a draft bulletin on trade associations, described in the preceding article.

The original information bulletin was issued by the Bureau in 1997, and the updated version largely elaborates on the principles set out in the original, but with some notable changes.  In particular, the revised bulletin has been expanded to include a template compliance program, a template "certification letter" for execution by employees following training, and a "due diligence checklist" for senior management. Although the revised bulletin has no legal effect and is not binding on the Bureau, it provides businesses with guidance as to the elements of a credible and effective corporate compliance program - which could prove important in the Bureau's consideration of a recommendation for leniency or alternative resolutions, should prosecution under the Competition Act nonetheless become a possibility.

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Kim D.G. Alexander-Cook

The parties in Maritime Travel Inc. v. Go Travel Direct.com Inc.,¹ a misleading advertising private action decided earlier this year, have recently filed their initial appeal and cross-appeal submissions.²

At trial, Maritime Travel, an established Canadian east-coast travel agency, alleged that upstart tour operator Go Travel Direct.com Inc. ran materially misleading newspaper advertisements. Maritime Travel claimed damages based on section 36 of the Competition Act, which provides a civil remedy for damages suffered as a result of a breach of a criminal provision of the Act. In this case, Maritime Travel alleged that Go Travel had knowingly or recklessly made representations to the public that were false or misleading in a material respect, contrary to section 52 of the Act. Developments in the law around sections 36 and 52 of the Act are important, because these sections provide the only basis for private damages for misleading advertising under the Act.

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On November 5, 2008, Google Inc. (Google) announced that it had terminated a non-exclusive advertising services agreement (the Agreement) with Yahoo! Inc. (Yahoo!) entered into by the parties in June. 

Under the Agreement, Yahoo! would have enjoyed the option of displaying Google's "sponsored search" ads in place of, or in addition to, its own sponsored search ads in the United States and Canada.

While the parties announced the Agreement in June, they voluntarily delayed implementation to permit antitrust/competition authorities in the United States and Canada to review the Agreement. Notwithstanding changes proposed by the parties to alleviate potential concerns raised by antitrust authorities, the U.S. Department of Justice's Antitrust Division (US DOJ) informed the parties on November 5 of its intention to file an antitrust lawsuit to block its implementation. Google thereafter announced that it had terminated the Agreement, prompting the US DOJ and the Canadian Competition Bureau to discontinue their respective investigations.

Stikeman Elliott represented Yahoo!, with a team comprising Paul Collins, Jeffrey Brown, Michael Kilby and Jennifer MacArthur.
 

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