² For a complete description of the approach taken by the Director to promote and to ensure compliance with the provisions of the Competition Act, see the Director of Investigation and Research's Program of Compliance, Information Bulletin No. 3, (revised) March 1993. (back to text)

³ The Director is also obliged to commence an inquiry when the Minister of Industry so directs, or when six Canadian residents make an application in accordance with the Act. An inquiry may be discontinued at any stage if, in the Director's opinion, further inquiry is not justified. The Director is required to report in writing to the Minister when an inquiry is discontinued. If the inquiry was commenced as a result of a six-resident application, the Director must inform the applicants of the decision and the grounds for discontinuance. The Minister may, on the written request of the applicants or on his own motion, review the Director's decision and, if in his opinion the circumstances warrant, instruct the Director to make further inquiry. (back to text)

⁴ Note that the burden of proof required to obtain a conviction under the criminal provisions (proof beyond a reasonable doubt) is higher than that required for the Tribunal to conclude that grounds exist to make an order under the civil provisions (proof on a balance of probabilities). (back to text)

⁵ The price maintenance provisions do not involve any test of market power. (back to text)

⁶ For a discussion of the circumstances when a vertical or conglomerate merger may raise competition concerns, see the Director of Investigation and Research's Merger Enforcement Guidelines, Information Bulletin No. 5, April 1991, at 41-43. (back to text)

⁷ See the discussion below at 18-19 which describes the approach taken to "control" in the Director of Investigation and Research's Merger Enforcement Guidelines, Ibid. (back to text)

⁸ Competitively sensitive information exchanged by competitors during merger negotiations which do not ultimately lead to a merger could provide grounds for an examination under the conspiracy provisions. See the Merger Enforcement Guidelines, Ibid., at 59 for a discussion of how to minimize this risk. (back to text)

⁹ See R. v. Armco Canada Ltd. (1974), 6 O.R. (2d) 521; 21 C.C.C. (2d) 129; 17 C.P.R. (2d) 211, and R. v. Canadian General Electric Company Ltd. (1976), 29 C.P.R. (2d) 1; 34 C.C.C. (2d) 489. (back to text)

¹⁰ It is possible that an offense may be established solely on the basis of evidence that the specific purpose or object of the agreement was to prevent or lessen competition unduly. However, the Bureau's enforcement approach has been to inquire into those agreements which are likely to have an anti-competitive impact in the market. (back to text)

¹¹ R. v. Nova Scotia Pharmaceutical Society (1992), S.C.R. 606, 139 N.R., 43 C.P.R. (3d) 1, 10 C.R.R. 34 (hereinafter cited to SCR), at 611. (back to text)

¹² Ibid., at 660. (back to text)

¹³ Ibid. (back to text)

¹⁴ Ibid., at 653. (back to text)

¹⁵ Ibid., at 654. (back to text)

¹⁶ Ibid., at 657. (back to text)

¹⁷ Ibid., at 649-650. (back to text)

¹⁸ The exchange of such information, particularly current or future pricing, may also raise issues under other provisions of the Act, including bid-rigging and price maintenance which do not involve any test of market power. (back to text)

¹⁹ Several prosecutions under the conspiracy provisions have involved trade associations. In R. v. Armco (1974), supra note 9, for example, a conspiracy conviction was obtained in a matter involving information exchanges and other activities made through an industry association. (back to text)

²⁰ In conducting such an analysis, the Bureau would consider the extent of foreign competition in defining the scope of the relevant geographic market which could extend well beyond Canada. (back to text)

²¹ The Act also provides an exemption from the exclusive dealing provisions for specialization agreements. (back to text)

²² Competition Act, supra note 1. (back to text)

²³ Where an alliance falls within the merger provisions, it may be subject to the notification provisions in Part IX of the Act. These provisions require persons who are proposing certain large acquisitions, amalgamations or combinations to notify the Director before completing the transaction and to supply certain information. In addition, persons who are planning a merger who wish to seek some assurance that the transaction they are proposing will not be challenged by the Director may apply for an Advance Ruling Certificate under section 102 of the Act. Issuance of an Advance Ruling Certificate also exempts parties from the requirement to comply with the prenotification provisions of the Act. For further information, see the Director of Investigation and Research's Merger Enforcement Guidelines, supra note 6. (back to text)

²⁴ Canada (Director of Investigation and Research) v. NutraSweet Company, (1991), 32 C.P.R. (3d) 1 (C.T.) at 28. (back to text)

²⁵ Ibid., at 34. (back to text)

²⁶ Ibid., at 35-36. (back to text)

²⁷ Ibid., at 33. (back to text)