Archived — Policy Statement for the Publication of Technical Backgrounders

Technical Backgrounder

April 2005


Greater transparency helps to inform the public about the Competition Bureau’s work and encourages compliance with the law. To increase transparency, the Bureau may, in certain circumstances, issue a technical backgrounder describing its analysis in a particular investigation, and the reasons underlying its final conclusions.

A technical backgrounder is not intended to substitute for the advice of counsel to the party or parties, or to restate the law. The specific facts of a case, as well as the nature of the information and data available, will be key determinants in the Bureau’s assessment of a matter. Enforcement decisions are made on a case-by-case basis, and the analysis and conclusions discussed in a technical backgrounder are not binding on the Bureau in future matters. Guidance regarding a specific matter may be requested from the Bureau through its program of written opinions or by requesting an Advance Ruling Certificate for a proposed transaction.

Criteria

In determining whether to publish a technical backgrounder, the Bureau will consider the following criteria: whether

  • the release of more comprehensive information will provide useful insight or education to the public and business community, thereby encouraging greater compliance with the law;
  • the issues are sufficiently important or complex;
  • there is a need to clarify a point of law or policy (for example, where the Bureau has taken a new approach);
  • the matter in question has received substantial publicity in the press; or
  • the practice in question has a significant impact on consumers.

A technical backgrounder will not typically be published where a case goes before the Tribunal or the courts, although it may be published for cases that have consent agreements, agreed statements of fact or prohibition orders on consent.

Confidentiality

In determining whether or not to publish a technical backgrounder, and what information to publish in a technical backgrounder, the Bureau will be guided by section 29 and subsection 10(3) of the Competition Act.

To ensure that commercially sensitive information is not inadvertently communicated, the Bureau will allow the party or parties to review the technical backgrounder shortly before its publication in order to provide them with an opportunity to identify any confidential information that, in their submission, should be removed (and any factual errors that, in their submission, should be corrected). While consideration will be given to the comments of the party or parties prior to the publication of the technical backgrounder, the Bureau will make the final determination regarding the content of that document.

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