doing business in canada - Davies Ward Phillips & Vineberg LLP

BID-RIGGINGBid rigging is any agreement whereby a person (a) agrees not to submit a bid or tender in response to a call forbids or tenders, (b) agrees to withdraw a bid or tender submitted in response to a call for bids or tenders, or (c)submits a bid or tender that is arrived at by an agreement with another person. Bid rigging is illegal if it is notdisclosed to the person calling for the bids or tenders before the time when any bid or tender is submitted orwithdrawn, as the case may be, whether or not the agreement is likely to have any effect on competition.As with the criminal conspiracy provisions, there is no requirement to show that the bid rigging had any effecton competition. Therefore, the market power of the parties to the bid-rigging agreement and the actual effect ofthe agreement on the bidding process are irrelevant.OTHER CRIMINAL OFFENCESOther criminal offences under the CA include: telemarketing, double ticketing, pyramid selling, conspiracyrelating to professional sport, and certain agreements among federal financial institutions. Misleadingadvertising can be dealt with either under a criminal provision or a non-criminal civil provision of the CA. For theBureau to pursue criminal charges, the government would have to prove that the accused knowingly orrecklessly made a false or misleading representation.PENALTIESThe CA provides for significant fines and, in some cases, imprisonment if there is a contravention of the criminalprovisions. For example, conspiracy is punishable by up to 14 years imprisonment, a fine of up to $25 million, orboth. Individuals in Canada have received jail sentences for conduct contrary to the conspiracy provisions. Thetrend in Canada is towards more frequent prosecutions of individuals and larger fines for conspiracy and bidrigging offences.Unlike U.S. law, there is no limitation period relating to indictable criminal offences under the CA, such asconspiracy and bid rigging.IMMUNITY FROM PROSECUTIONThe Commissioner has an immunity policy which may allow an applicant who is "first in" to report a criminaloffence (such as conspiracy or bid-rigging) to receive a recommendation of immunity from prosecution inexchange for cooperation in the prosecution of others, provided that the applicant meets the other criteria setout in the immunity policy. Subsequent applicants may seek another form of lenient treatment, such as areduction in sentence, but will not normally be eligible for a recommendation of immunity unless the "first-in"party ultimately does not qualify.NON-CRIMINAL REVIEWABLE MATTERS UNDER THE COMPETITION ACTABUSE OF DOMINANT POSITIONThe Tribunal may, on application by the Commissioner, make an order requiring, among other things, that aparty pay an "administrative monetary penalty" of up to $10 million (and up to $15 million for each subsequentorder) or cease certain conduct or dispose of assets or shares if it finds that:(a) one or more persons substantially or completely control a type of business throughout Canada or anypart of Canada;(b) one or more persons has engaged, or is engaging, in a practice of anti-competitive acts; andCompetition Law 35