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Speaking notes for John Barker Assistant Deputy Commissioner

Competition Bureau

Working with the Bureau

Canadian Bar Association National
Competition Law Section
Annual Conference
Hilton Lac Leamy, Ottawa/Hull
September 23, 2004

Check against delivery

Introduction

Working with the Bureau can take many forms. Obviously there is the aspect of being ready in situations where the Bureau uses formal powers to obtain information in a company's possession. However, there are other instances of working with the Bureau, more frequently encountered by companies, for example, when the Bureau initiates contact with a company, such as to request information in an informal context, or when a company wants or needs to contact the Bureau either to seek advice or comply with legislated requirements. This paper will first discuss steps that companies can take to be better prepared to deal with the Bureau in any circumstance. This includes understanding the overall approach of the Bureau to the discharge of its mandate, as well as the role that corporate compliance programs can play in getting a company ready to deal with the Bureau. The paper will then address the various types of interaction a company can have with the Bureau and finally describe the treatment of information provided by a company once it is in the Bureau's possession.

Background

While the Commissioner of Competition is responsible for the administration and enforcement of four statutes, this paper will focus on the Competition Act. The Bureau, more specifically the Commissioner, is charged with the enforcement of the Act and the promotion of competition generally. The Act is a framework law of general application which, with both criminal and civil provisions, governs most business conduct in the Canadian marketplace and the purpose of the law is set out in section 1.1 of the Act which states

"1.1 The purpose of this Act is to maintain and encourage competition in Canada in order to promote the efficiency and adaptability of the Canadian economy, in order to expand opportunities for Canadian participation in world markets while at the same time recognizing the role of foreign competition in Canada, in order to ensure that small and medium-sized enterprises have an equitable opportunity to participate in the Canadian economy and in order to provide consumers with competitive prices and product choices."

Part One - Being Ready

A) Understanding the Bureau and its mandate
i) The Conformity Continuum

A company will be better positioned to deal with the Bureau if it has a clear understanding of how the Bureau carries out its mandate, which it sees as much broader than just the enforcement of the law. The Bureau's Conformity Continuum which is described in the Information Bulletin on the Conformity Continuum¹ and shown in Figure 1 is premised upon the belief that the Bureau has a responsibility to enforce the law but also to inform and educate, to enable marketplace participants to comply and to deter misconduct before it occurs. The strategy reflected in the Continuum is an integrated one that links all of the various Bureau activities together in support of the common goal of maximizing compliance and that recognises the importance of the interdependent and complementary roles of education, suasion and enforcement.

Figure 1

The Conformity Continuum

Within the Continuum, the instruments have been grouped into two main categories as shown in Figure 1

The first category are General Application instruments. These are instruments directed universally to the marketplace on an ongoing basis. Activities within this category include achieving compliance through education in the form of publications, communication and advocacy. Other instruments in this category facilitate compliance through monitoring the marketplace.

The second category is comprised of Specific Application instruments. The first group of these are used to respond to individual cases or circumstances where compliance is facilitated using instruments of a voluntary nature such as the provision of binding written opinions or Advance Ruling Certificates. The second group are used to respond to non-compliance in the form of suasion, consent and adversarial action.

The Continuum provides a comprehensive picture of the variety of ways in which the Bureau can assist companies to comply with the law as well as the tools available to address non-compliance. Understanding how the Bureau approaches its mandate, the various components of its compliance and enforcement strategy, will enable companies to better prepare when the Bureau calls or when they need or want to call the Bureau.

It is essential to that understanding to recognise that in addressing instances of non-compliance, the Continuum is not applied in some linear fashion which sees the Bureau, in each case, begin on the left hand side using education and suasion and gradually moving to the right using more adversarial approaches only when the others have failed. Rather the Continuum enables the Bureau to customise the approach to a specific issue. It gives the ability to choose the single instrument or group of instruments that will address the specific issue or anti-competitive activity. The Bureau will use all of the instruments in the Continuum as and when appropriate. The decision of which approach to use will made on the basis of the nature of the contravention. The Bureau will not shy away from taking strong and immediate action when required. Egregious anti-competitive conduct, such as telemarketing scams or hard-core cartel behaviour will be attacked with the full force of the law in the first instance. Just as importantly there will be other instances of non-compliance where formal action would be inappropriate and which are better addressed through education and advice.

The Continuum identifies a number of activities and programs by which the Bureau assists companies and individuals to learn more about the law and its application whether in a general sense or with respect to a particular issue and thereby comply with the law. A number of these activities and programs will be discussed in this paper.

ii) Being informed about the Bureau

In order to understand and comply, a company first needs information. To address this need, the Bureau has had as one of its priorities for the past several years to put out as much information and material on its policies, approaches and decisions as possible. Its primary method of communication is through its website at cb-bc.gc.ca which contains a wealth of information including:

The Bureau's Annual Reports which describe the activities of the Bureau in the previous year, including major cases, decisions, interventions and international activities
Bulletins, which are policy statements published to provide clarity to the Bureau's approach on a variety of topics. Examples would include the Bulletins on the Conformity Continuum, on Corporate Compliance Programs and on the Immunity Program
Guidelines, which are an articulation of the Bureau's enforcement policy with respect to the various provisions of the Act. Examples would include the Merger Enforcement Guidelines and the Guidelines on the Abuse of Dominance Provisions.
Pamphlets, which provide general information on the Bureau and various provisions of the legislation
Press releases on significant developments including proceedings before the courts or Competition Tribunal and other enforcement actions, policies, international activities and;
Speeches by the Commissioner and senior officials of the Bureau

If individuals or companies need to have personal contact with the Bureau, they can contact the Information Centre.² Businesses or individuals can contact the Bureau through the Centre to lodge a complaint, obtain information or request publications. The Centre handled over 60,000 complaints and requests for information last year

The Bureau will also make speakers available to address conferences, associations or other groups interested in understanding its roles and responsibilities.

B) The importance of Corporate Compliance programs

Various activities described in the Conformity Continuum support the Bureau's efforts to encourage voluntary compliance by marketplace participants. One such activity is the promotion of the adoption of corporate compliance programs. In 1997, it issued the Bulletin on Corporate Compliance Programs³ to provide companies with a clear understanding of the elements that the Bureau believed were essential in an effective compliance program. In addition, the Bulletin identified a number of different situations where an effective program would assist in dealing with the Bureau.

First, an effective compliance program can enable a company to respond to Bureau inquiries with respect to activity falling under certain misleading advertising sections of the Act where there is a due diligence defence. While simply having a compliance program is not a defence, having such a program may enable a company to demonstrate that it took all reasonable steps to avoid committing the offence.

Second, it may be of assistance where the Commissioner is considering the appropriate course of action where she has obtained evidence of anti-competitive conduct. While the fact that a firm has implemented a compliance program will not preclude enforcement action by the Commissioner or the Attorney General in the face of anti-competitive conduct the existence of an effective corporate compliance program may enable a company to demonstrate that it has met some of the necessary prerequisites to be considered for an alternate case resolution. For example, an effective corporate compliance program can enable a firm to demonstrate to the Commissioner that:

the company terminated the illegal conduct as soon as it came to light;
the company attempted to remedy the adverse effects of the conduct; and
the conduct was not in keeping with corporate policy.

Third, firms with effective programs are likely to be better situated to approach the Commissioner under the terms of the Bureau's Immunity Program. Without a compliance program, possible violations may not come to light early enough to enable a firm to report it to the Bureau and make a request for immunity.

Having identified some possible areas where a compliance program can help in dealing with the Competition Bureau, what does the Bureau consider to be the essential elements of an effective compliance program and what are some of the compliance activities that seem to be successful?

There are three general points to be made before addressing the specific elements of such a program. First, just like the Bureau's approach to its mandate, all the parts of a compliance program must link together to form a whole. No one part is more important than another and no one part can be successful without the others. Second, an effective compliance program is a living thing. It requires work to set it up and work to ensure it remains effective. Third, the best compliance programs are those that are seen by staff as enabling not restrictive. In other words, that are designed to educate staff about the law and jurisprudence and are positioned not just to identify what cannot or should not be done but equally importantly to provide guidance as to what is permissible. Good compliance programs will reduce the uncertainty about what the law allows and empowers employees by giving them a clear understanding of the bounds of permissible conduct as well as the areas of risk. If they achieve this goals, they enhance the competitiveness of the company and its employees by minimising the possibility that aggressive but permissible conduct will be foregone because of any uncertainty as to the application of the law in a particular situation.

As to the specifics, the Bureau identified five essential components of an effective program.

The first is Senior Management involvement. Effective programs are those where employees can see that compliance matters to the most senior levels of the company. At its most basic level this is clearly demonstrated when management is a vocal supporter of the program. However, there are other ways to re-enforce the message. Consistent with the old adage that "actions speak louder than words", the message that compliance matters is delivered very powerfully when senior management is seen to actively participate in the compliance training sessions employees are required to take.

The second is policies and procedures. While there is a clear need for them to be written down, for employees to be ready and able to follow them, the policies and procedures need to be made real and seen as relevant to and part of everyday activities.

To achieve this, these policies and procedures must be linked to the third key component which is education and training. The best examples of education and training are those that bring staff face to face with the intersection of compliance policy and procedure and their daily activities. It is important to recognise that paper can only go so far in promoting compliance. The most successful compliance training and education programs are based on some form of meaningful interaction. Small group seminars and workshops are a proven way to educate staff. Bringing together a group of employees performing similar duties to present and discuss scenarios dealing with the specific market realities of the particular firm provides the link between the company's policies and procedures and the situations an individual will confront. The impact of this type of training is enhanced by the presence of the immediate supervisor either as presenter or as an active participant which serves to re-enforce the message of management support and helps relate compliance to everyday activities. It is a well accepted fact that messages to staff are best received when delivered by their immediate manager.

In creating the training and educational components of a compliance program, companies should consider incorporating Bureau publications into their documentation. These pamphlets, bulletins and guidelines have been developed to explain the law and the Bureau approach to different audiences

When developing or updating a compliance program, it is essential these days to recognise that technology has significantly expanded the possibilities for training and education on compliance matters and done it in a way that provides that necessary ingredient of staff involvement and requirement for action rather than a more passive participation. Computer based programs enable companies to customise the content to their industry; they can be quickly updated to reflect changes in the law, in the marketplace or to address a compliance issue that came to light as the result of audit and monitoring procedures ( two parts of the fourth component of an effective program).

Although an essential objective, monitoring, audit and reporting procedures should not be seen either by management or by staff as simply instituted only for the purpose of uncovering non-compliance. The most effective monitoring and audit procedures are those that also enable companies to identify areas of risk, areas where additional targeted training is required, new compliance issues that point to the need for new policies to be developed. They then become pro-active and preventative as much as reactive and corrective. These monitoring and audit procedures need to be accompanied by a reporting mechanism that provides staff with an unfettered ability to report conduct that may contravene the law which can again enable the company to become aware of problems in a timely fashion and allow corrective measures to be taken.

The fifth component is the existence of disciplinary procedures for non-compliance. There is not a need to go into great detail on this aspect of a program. Clearly, staff need to know that contravention of the compliance program will lead to disciplinary action. When the first four components of a compliance program are effectively implemented, then staff are clear as to what is expected, what is being done to support and educate them and the consequences if this is ignored.

The Bureau strongly supports the development of corporate compliance programs. Companies should look to the many Bureau activities to inform those programs and assist in keeping them current.

As stated earlier, a good understanding of the approach of the Bureau to its mandate and an effective compliance program can ensure a company is well prepared for the various types of interactions with the Bureau discussed below.

Part 2-Contact with the Bureau

A) Contact initiated by the Bureau

Contact initiated by the Bureau may be of an informal or formal nature. Both types of contact can occur at the same time on a given file. The Bureau will seek information from a company in order that it can make an informed decision with respect to a particular matter that is before it. These matters would include examinations and inquiries of potentially anti-competitive conduct contrary to the criminal or civil provisions of the Act and the assessment of the impact of a merger on a market or markets. The Bureau will be seeking information to enable it to understand the market or markets in question, the market participants and other significant factors from a current and future perspective.

Preliminary Examinations

During the preliminary stages of an investigation, where the Bureau has received a complaint or identified an area of possible concern, it will make a number, sometimes a significant number, of contacts to obtain information on a voluntary basis to enable it to make an initial determination with respect to the particular matter. Those contacted are being asked to assist the Bureau to reach a conclusion as to whether there are grounds to investigate further, open a formal inquiry or close the file. These contacts will range from telephone interviews to extensive lists of written questions designed to enable the Bureau to benefit from the particular marketplace knowledge and understanding of the company being contacted. The ability to gain insight into a market or particular behaviour at this preliminary stage is essential for the Bureau to be able to reach determinations as to which matters raise no competition issues and which do and therefore require greater scrutiny and the commitment of additional resources. As will be discussed later, all this information is treated confidentially.

Formal Inquiry

Under Section 10 there are three situations in which the Commissioner is required to commence an inquiry. By far the most frequently used is under section 10(1) (b), whenever the Commissioner has reason to believe (i) that a person has contravened an order made pursuant to Sections 32, 33 or 34 or Part VII.1 or Part VIII, (ii) that grounds exist for the making of an order by the Tribunal under Part VII.1 or Part VIII or (iii) that an offence under Part VI or VII has been or is about to be committed⁴. Commencing a formal inquiry is a serious step and one not taken lightly. The Commissioner will only commence a formal inquiry on her own initiative when the information she has obtained as the result of one or more complaints, Bureau research and information provided voluntarily as the result of market contacts provides her with the requisite belief that the grounds specified in section 10 exist.

Once the Commissioner has determined that there are sufficient grounds to commence a formal inquiry, she can then avail herself of the formal information gathering powers provided for in Sections 11 and 15.⁵ At that point, a company may be faced with the court ordered requirement to provide information to the Bureau under one of these two sections. It is important to understand that, even though there is a formal inquiry, industry participants may and likely will continue to be contacted to provide information on a voluntary basis.

On the one hand, companies that are the subject of one of these information gathering powers should understood that, while the Commissioner is now on formal inquiry, the Bureau is still in an investigative mode. It is still seeking information to enable it to reach a final conclusion about certain conduct in the marketplace. On the other hand there has now been a significant development since the Commissioner has commenced a formal inquiry under section 10 of the Act and has therefore crossed an important threshold in terms of the potential applicability of the Act to the conduct in question.

The Bureau views both Section 11 and section 15 as essential evidence gathering powers in order for the Commissioner to be able to determine the facts, as required by section 10, to gather all of the relevant information and to reach a decision in a timely fashion as to whether to apply to the Competition Tribunal, refer a matter to the Attorney General or discontinue the inquiry.

Section 11

Section 11 essentially provides the Commissioner with three evidence gathering mechanisms. The Commissioner or her authorised representative can apply to a judge, ex parte, for an order compelling a person to attend before a presiding officer and be examined under oath, to produce records specified in the order, or to make and deliver a written return of information. In order for the judge to issue the order, the Commissioner must satisfy the judge of two facts. First that an inquiry is being made by the Commissioner and, second, that the person subject to the order has or is likely to have information that is relevant to the inquiry. The Commissioner may seek orders under Section 11 of the Act either against those under inquiry or third parties which are believed to have information relevant to the inquiry.

The Bureau believes that the requirement for judicial authorisation, the requirements to obtain that authorisation and the internal Bureau processes which have been put in place ensure that the powers are used in the appropriate cases and in a focussed and effective way.⁶

The Bureau's internal processes with respect to the drafting of Section 11 applications and orders have changed significantly in the past few years. Now, before the application is made to a judge, the draft orders go through a rigorous internal process culminating in their review and sign off by a senior, experienced member of the Bureau. This challenge function was introduced three years ago and the person exercising this challenge function has the responsibility to carefully review the draft orders to ensure an overall consistency in the approach which the Bureau follows and ensure, as much as possible, that the questions contained in each draft order are clear and focussed on the issues raised in the specific inquiry.

One question that has been asked of the Bureau is when it will choose to use voluntary requests and when the powers under Section 11 in a matter under inquiry. The short answer is that the Bureau will use whichever is more appropriate at the time and in respect of the particular circumstance. It should be understood that it is not Bureau practice, as some have suggested, to only use formal powers if voluntary methods have proved unsuccessful or conversely to always use section 11 powers when voluntary requests have been refused. Once the Commissioner is on inquiry, both the parties under investigation and the Bureau benefit from a timely and efficient process. Requiring a party to provide specific information in an evidentiary format, under oath and in a specified time enables the Commissioner to be assured she will have all relevant information to make a decision without undue delay. It is frequently the case that while some parties are being required to provide information in response to a Section 11 order, other market participants are being asked to provide information on a voluntary basis. The decision as to the appropriate choice will depend on a number of factors including the party from whom the information is being sought and the nature and importance of the information sought.

While the Bureau may, in a particular case, consider consulting with a party against whom it intends to seek an order, this will generally not be the case. Certainly, it will not discuss the content of a draft Section 11 order with a company. Once the order is issued, staff will always be ready to explain and clarify questions and assist company officials to respond in a manner which complies with the order.

Where a company wishes to seek a variation of the order, the Commissioner is of the view that, since the order is an order of the Court, the appropriate course of action is to seek the variation from the court which issued the order. The Bureau does not believe that it is appropriate for Bureau staff or legal counsel to discuss and agree to amend an order of the court.

Section 15

Section 15 provides that the Commissioner or the authorised representative of the Commissioner may apply to a judge, ex parte, for a search warrant, authorising the Commissioner or any person named in the warrant to conduct a search of the identified premises and seize certain records. The requirements to satisfy the judge are different from those provided for in Section 11. Under Section 15, the judge must be satisfied, first, that there are reasonable grounds to believe that a person has contravened an order, an offence has been or is about to be committed, or grounds exist for the making of an order by the Competition Tribunal. Second, the judge must be satisfied that there are reasonable grounds to believe that there is, on the specific premises to be searched, records that will afford evidence relating to one of the three situations enumerated in the section.

Three general points about the conduct of a search should be made. First. as emphasised earlier, while this is a formal evidence gathering process, at this stage the Commissioner is still, as provided for in Section 10, conducting an inquiry " with the view of determining the facts" so as to reach a conclusion as to the appropriate decision to take in the matter at hand. As such it is incumbent on Bureau staff conducting a search to ensure that they identify and seize all records relevant to the Commissioner's inquiry to enable a fully informed decision to be taken as to the appropriate disposition of the inquiry.

Second, when a company is the subject of a search warrant, Bureau staff will allow a reasonable amount of time for officials to contact counsel for advice, consistent with the requirements to secure the premises and to commence the search in a timely fashion.

Third, Bureau staff are well aware that there are likely to be documents on the premises which are subject to claims of solicitor client privilege and will discuss with company officials or counsel the appropriate procedure to ensure the continuation of any privilege while ensuring the integrity of the search and the ability of staff to locate and review for possible seizure any documents falling within the scope of the warrant.

B) Contact initiated by a company

A company may wish or need to contact the Bureau for a number of reasons starting with wishing to make a complaint or obtain information as has been discussed earlier. In both these instances the appropriate starting point is the Information Centre where the staff will be able to answer many questions, respond to requests directly or refer the caller to the appropriate branch within the Bureau.

There are two other more formal mechanisms for contacting the Bureau, seeking a binding written opinion and filing a Pre-merger notification or request for an Advance Ruling Certificate. Both of these activities are subject to the Bureau's Fee and Service Standards Policy⁷ which provides that a fee is payable in respect of these services and filings and that service standards apply which are timeframes within which the Bureau endeavours to respond. Approximately every two years the Bureau publically reports on its performance against these service standards. The Fee and Service Standards Handbook, Policy and the most recent Merger Review Performance Report can be found on the Bureau's website under Business Services, Fees and Service Standards.

Binding Written Opinions

Since April 2003, under section 124.1 of the Act, the Commissioner may provide binding written opinions on proposed business conduct. Companies contemplating a course of conduct can now seek a binding opinion as to whether the proposed conduct or practice would raise an issue under the Act. This new instrument for providing advice to those who wish to avoid coming into conflict with the Act is an additional important element in the Bureau's efforts to inform companies and thereby promote compliance. A company wishing to request such an opinion would write to the Commissioner detailing the plan or practice and providing relevant information. Since the Bureau does not conduct third party contacts in these instances and the opinion is based solely on the information provided by the applicant, it is important that this information be as complete as possible. To assist companies in this regard the Bureau's Fee and Service Standards Handbook provides considerable guidance as to the type of information that should be provided with respect to requests under the various sections of the Act and also specifies the fee applicable to the various types of request. As noted above, the Bureau publishes service standards for various types of requests for written opinions and it should be noted that the relevant service standard will not be started until the Bureau has received the specified information which it requires in order to make an informed decision.

Pre-merger notification and requests for Advance Ruling Certificates

Companies required to notify the Commissioner of a proposed merger or those seeking an Advanced Ruling Certificate should similarly consult the Handbook which contains a detailed list of information that should accompany the filing and which will enable the Bureau to reach a decision on the matter in a timely fashion. Similar to requests for binding written opinions, there are specific service standards for merger review and the service standard will not be started until the Bureau has received the information identified in the Handbook. The staff of the Merger Notification Unit will respond to inquiries and is always ready to assist companies and their counsel in understanding the requirements of the Act and the Handbook. In addition, to specifically assist in the area of merger pre-notification and in response to requests from the legal and business communities, the Bureau has issued a number of interpretation bulletins on the merger notification provisions which can be found on the Bureau's website.

Part 3-Protections afforded information in the Commissioner's possession

Given that the Bureau obtains, either voluntarily or through formal powers, very large quantities of sensitive and confidential information, it is important that those supplying this information understand how the Bureau will treat and handle it. There are two sections of the Act that govern the treatment of information in the Commissioner's possession, Section 10 and Section 29.

Section 10(3) of the Act requires that all inquiries be conducted in private. In practice this means that the Bureau will not disclose or comment on the existence of an investigation or inquiry. While the existence of an inquiry or investigation may become publically known, the Commissioner's comment will always be very limited.

Section 29 reads as follows

"29. (1) No person who performs or has performed duties or functions in the administration or enforcement of this Act shall communicate or allow to be communicated to any other person except to a Canadian law enforcement agency or for the purposes of the administration or enforcement of this Act

(a) the identity of any person from whom information was obtained pursuant to this Act;

(b) any information obtained pursuant to section 11, 15, 16 or 114;

(c) whether notice has been given or information supplied in respect of a particular proposed transaction under section 114;

(d) any information obtained from a person requesting a certificate under section 102; or

(e) any information provided voluntarily pursuant to this Act.

(2) This section does not apply in respect of any information that has been made public or any information the communication of which was authorized by the person who provided the information."

There were two significant amendments to Section 29 in 2002. The first gave statutory protection to voluntarily provided information and now covers essentially all information in the Commissioner's possession. Prior to the amendment, voluntarily provided information had been treated by the Bureau in its statement of practice as if it were covered by s.29 but it did not have the same legal protection. The second which will be discussed below allowed the communication of "any information the communication of which was authorized by the person who provided the information."

The Section has as its basis premise the fact that information in the possession of the Commissioner should be treated confidentially. Furthermore, the Bureau's statement of practice with respect to the Communication of Confidential Information under the Competition Act in its opening paragraph, states that the "policy of the (Commissioner) is one of minimising the extent to which confidential information is communicated. Communication of confidential information is not the rule; it is the exception"

Section 29 identifies the four specific circumstances in which information in the Commissioner's possession is permitted to be communicated outside the Bureau. Note that what is permitted in these limited circumstances is the communication of information not information sharing which is a different concept.

First, as the result of an amendment to the law in 2002, information covered by section 29 may be communicated where the "communication .. was authorised by the person who provided the information". As a result, with the consent of the party concerned, the Bureau can disclose confidential information, for example to another agency in a multi-jurisdictional merger review. Clearly, this can expedite the review by enabling the agencies to work together to assess the impact of the proposed transaction and where necessary develop remedies collaboratively.

Prior to this amendment, Bureau staff were limited in their ability to discuss a file with a counterpart in another competition agency. Evidently, prior to the amendment such discussion took place, particularly in the mergers context, but would essentially have been limited to exchange of non-confidential and general information and discussions on approaches and methodology unless the Bureau could justify disclosing confidential information on the basis of the fourth enumerated circumstance which will be discussed below.

It is evident that a company involved in, for example, a multi-jurisdictional merger transaction should give serious consideration before commencing dealing with the Bureau, to providing the necessary consents to enable the Bureau to communicate with its foreign counterparts reviewing the same transaction. In the Bureau's experience this makes it more likely that the agencies will reach the same conclusions on matters such as market definition, barriers to entry. It helps avoid conflicting remedies. It makes the investigative process more efficient as well as the cooperation between the agencies which is likely to occur but in a more constrained fashion.

Second, Section 29 does not apply to any information that has already been made public.

Third, information may be communicated to a Canadian law enforcement agency, for example where the Bureau becomes aware of activity falling under laws other than those enforced by it.

Finally, section 29 specifically provides that the Bureau may communicate confidential information for the purposes of the administration or enforcement of the Competition Act. The Bureau will communicate confidential information for these purposes where it is satisfied that disclosure of the information would advance a specific Canadian inquiry. As with all communication of confidential information under this exception, the Bureau would only do so where it was satisfied that other alternatives where not available or appropriate. This would be done to elicit information necessary to develop evidence or to enable the Commissioner to determine if the assessment of any potential anti-competitive conduct is correct or to the extent necessary to enable another Canadian law enforcement agency to assist the Bureau in a specific inquiry.

A concern of many companies is with respect to the circumstances under which the Bureau would communicate confidential information to a foreign competition agency. It is a fact that inter-agency co-operation has become a necessary response to globalisation and the international marketplace. This cooperation could occur for the purposes of obtaining the assistance of that agency in the matter in question, obtaining relevant information in the possession of those agencies. While such co-operation has become essential it should be repeated that this would only be done to advance a Canadian inquiry. Any such disclosure of confidential information will only take place in situations where there is in place bilateral or multi-lateral cooperation instruments with the other agency and where the Commissioner is satisfied of the assurances received as to the use of the information by the foreign agency and of the measures in place to protect the confidentiality of the information communicated.

Conclusion

Contact between the Competition Bureau and the legal and business communities is a daily occurrence and as this paper has demonstrated can take many forms. The Commissioner and the Bureau are committed to working with companies to enable them to comply with the law and to that end are ready to offer information, advice and guidance either in person or through its various communications vehicles. Where resort is required to the use of formal powers, the Bureau is very cognisant of their impact on targets but at the same time views these powers as essential to its ability to carry out its mandate to maintain and encourage competition in the Canadian marketplace.

1. Conformity Continuum Information Bulletin, Competition Bureau, 2000.

2. The Information Centre can be contacted by telephone at 1-800-348-5358, by fax at 1-819-997-0324 or by email through the Bureau's website at cb-bc.gc.ca .

3. Corporate Compliance Programs, Competition Bureau, 1997.

4. The other situations are under Section 10 (1) (a) on application by six persons resident in Canada under Section 9 and Section 10 (1) (c) whenever directed by the Minister to inquire whether any of the circumstances described in subparagraphs (b) (i) to (b) (iii) exists.

5. Although not a requirement under the Act, the Commissioner will generally commence an inquiry under section 10 prior to making an application under section 15.

6. In 2001-02 there were 15 inquiries where orders were obtained, 12 in 2002-03 and 13 in 2003-4

7. The Fee and Service Standards Policy can be found on the Bureau's website under Business Services, Fees and Service Standards.