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The Latest from the Competition Bureau: CRTC Cooperation Agreement Signed and New Immunity and Leniency FAQs Released

Download this publication September 26, 2013

CRTC and Competition Bureau Sign Letter of Agreement on Cooperation

On September 25, 2013, the Chairman of the Canadian Radio-television and Telecommunications Commission and the Commissioner of Competition announced that they had signed a Letter of Agreement providing for closer cooperation between the CRTC and the Competition Bureau.

Transactions in the broadcasting sector, such as the Bell-Astral merger, and recent consumer-facing regulation in the wireless sector illustrate the intersection of telecommunication regulation by the CRTC and Competition Act enforcement by the Competition Bureau. Both agencies consider broadcasting and telecommunications issues and it is often unclear where the scope of review of one agency ends and the other’s begins.

The newly announced Agreement does not address the substantive division of jurisdiction between the two authorities. Jurisdictional issues were addressed in a 2001 understanding between the Competition Bureau and the CRTC, but this document was removed from the CRTC website and its status is uncertain. The Agreement focuses instead on inter-agency connections between the CRTC and the Competition Bureau, providing for

  • notification of the other agency with respect to a review or process under the Competition Act, the Telecommunications Act or the Broadcasting Act that is of significant public importance, where a review or process with respect to the same matter could be carried out by the other agency under its mandate, and the exchange timing and other procedural information related to such reviews and processes;
  • participation in collaborative training exercises and knowledge transfer sessions;
  • sharing of information on best practices, including international policies and programs;
  • development of an employee exchange program under which the agencies will reciprocally host each other's employees; and
  • semi-annual meetings of senior management from both agencies to discuss the above initiatives and to explore other opportunities for cooperation and collaboration.

The Agreement also addresses the treatment of information obtained via inter-agency co-operation, specifying that the CRTC and the Competition Bureau will seek to maintain the confidentiality of the information obtained from each other. When a third party requests information from one agency which was originally obtained from the other agency, notification will be provided to the originating agency. Further, confidential information obtained from one agency will not be disclosed to third parties without written consent of the originating agency, except as required by law. Where disclosure is required, the CRTC and the Competition Bureau will consult on how best to protect the interests of any review or process in light of the disclosure requirement.

Bureau Releases Revised Immunity and Leniency FAQs

The Competition Bureau has released revised "Frequently Asked Questions" (FAQs) for its Immunity Program and its Leniency Program. Both sets of FAQs were last updated in 2010.

The updated FAQs address a number of new questions, revise responses to questions under the prior FAQs and harmonize the topics covered by the two sets of FAQs. For example, both sets of FAQs now address how the Competition Bureau treats immunity and leniency markers in the context of investigations that it does not intend to pursue; when a proffer will be considered complete; and immunity/leniency applications where there are no direct or indirect sales into Canada. The new FAQs also cover topics of a more technical nature, such as the required format and language for production of records to the Competition Bureau.

In announcing the updated FAQs, the Competition Bureau emphasized the continuing importance of its Immunity and Leniency Programs in aiding anti-cartel enforcement in Canada. As noted by the Competition Bureau, these programs are intended to provide incentives for businesses and individuals to report anti-competitive conduct and to cooperate with the subsequent investigation of such conduct. Further guidance from the Competition Bureau on the programs is available in its Immunity Bulletin and Leniency Bulletin.

Davies Ward Phillips & Vineberg LLP is an integrated firm of approximately 240 lawyers with offices in Toronto, Montréal and New York. The firm is focused on business law and is consistently at the heart of the largest and most complex commercial and financial matters on behalf of its clients, regardless of borders.

The information and comments herein are for the general information of the reader and are not intended as advice or opinions to be relied upon in relation to any particular circumstance. For particular applications of the law to specific situations, the reader should seek professional advice.

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