Competition
|
21
Hodgson, James A.
Norton Rose Fulbright
Canada LLP
(416) 216-2989
jim.hodgson@nortonroseful-
bright.com
Mr. Hodgson practises
commercial, corporate
and civil litigation. He
focuses on sharehold-
ers' rights, securities
litigation, class actions,
construction, product
liability and professional
liability. Past President,
Advocates' Society,
Fellow ACTL.
Holsten, R. Jay
Torys LLP
(416) 865-7523
jholsten@torys.com
Mr. Holsten's practice
focuses on complex
merger review and the
competition law aspects
of other strategic busi-
ness arrangements.
Huff, Pamela L.J.
Blake, Cassels
& Graydon LLP
(416) 863-2958
pamela.huff@blakes.com
Ms. Huff's insolvency
practice engages the
domestic and cross-bor-
der litigation and com-
mercial aspects of work-
outs, reorganizations,
receiverships and other
security enforcement.
She appears before all
levels of courts in com-
plex commercial cases.
Hofley, Randall J.
Blake, Cassels
& Graydon LLP
(416) 863-2387
randall.hofley@blakes.com
Mr. Hofley's competi-
tion/regulatory law
practice has him
appearing as lead
counsel before federal
tribunals and Canada's
provincial, federal and
Supreme Courts; he is
highly ranked by leading
rating publications.
Howard, Peter F.C.
Stikeman Elliott LLP
(416) 869-5613
phoward@stikeman.com
Mr. Howard's domestic
and international prac-
tice focuses on secur-
ities, corporate, class
actions, white-collar
criminal litigation, and
embraces shareholder,
insolvency, M&A and
banking issues. He
appears before courts,
tribunals and ADR
forums.
Hughes, Randal T.
Bennett Jones LLP
(416) 777-7471
hughesr@bennettjones.com
Co-chair of the Competi-
tion/Antitrust Practice
Group. Litigated leading
merger and abuse of
dominance cases. Rep-
resents clients in inter-
national and domestic
cartel investigations,
and in substantial civil/
class actions in compe-
tition law matters.
sumer choice in Ontario's residential water heater industry,"
said the Bureau's Pecman in a recent speech.
In competition case law, the major ruling in the past year
was the Supreme Court of Canada's decision in Tervita Corp
v. (Canada) Commissioner of Competition, 2015 SCC 3.
Tervita Corp. owns the only two hazardous waste landfills
in northeastern British Columbia. As part of its acquisition
of Complete Environmental Inc. in 2009, Tervita acquired
an interest in Babkirk Land Services Inc., which planned to
develop a new landfill site in northeastern BC. e Bureau
challenged the deal before the Competition Tribunal in
2011, alleging it was likely to substantially prevent competi-
tion in secure landfill services in the area.
e Tribunal found in favour of the Commissioner and
ordered Tervita to divest the Babkirk site. Tervita appealed
all the way to the Supreme Court of Canada, which ruled in
January 2015 — the first decision from the SCC in a merger
case in almost 20 years.
e Tervita merger was the second transaction – the first
was the Superior Propane/ICG merger – where the courts
found anti-competitive effects but allowed the merger to
proceed due to the "efficiencies" defence in s. 96 of the Act.
Efficiency gains in Tervita were less than the yearly salary
of a half-time junior employee. "Yet because of difficulties
in how the Commissioner presented evidence on the anti-
competitive effects, those efficiencies won the day," says Kev-
in Wright, a partner at DLA Piper in Vancouver.
When the responding party invoked the efficiencies de-
fence, he says, "there was an obligation on the Commission-
er, to the extent possible, to quantify the anti-competitive
effects of the merger." It's not sufficient to show the effects
of a merger are harmful to competition in a qualitative way.
"ere must be a target for the respondent to react to when
they go to claim efficiencies," he says. "e Commissioner
didn't do that." As a result of the ruling, there is a heightened
awareness at the Bureau that they have to quantify, to the ex-
tent possible, anti-competitive effects.
A second significant court case is the recent decision of
the Ontario Superior Court in R. v. Nestlé Canada Inc.,
2015 ONSC 810, arising out of the Bureau's ongoing price-
fixing case against chocolate companies Nestlé Canada Inc.,
Mars Canada Inc. and ITWAL Limited.
e court ruled that where members of an alleged price-
fixing cartel (i.e., Cadbury and Hershey) provide informa-
tion against other members of the alleged cartel (i.e., Nestlé
and Mars) to the Crown in exchange for immunity from
criminal prosecution, that information must be disclosed to
the other members who are charged.
is decision addresses the conflicting principles of a
co-operating party's right to settlement privilege versus an
accused's right to full disclosure by the prosecution. "In a
conflict between these two rights, the right of an accused is
going to win," says Katherine Kay, a partner at Stikeman El-
liott LLP in Toronto.
"Counsel for a party seeking immunity or leniency needs
to be mindful that the Crown will have a disclosure obliga-
tion to other accused," she says. "e Competition Bureau
will need to be aware of that as well.
"is decision is the first to consider these principles
squarely in a competition-law context," says Kay. "I view the
decision as important confirmation that those principles ap-
ply to Competition Act prosecutions, but I don't otherwise
view it as a departure from longstanding legal principles."
e Competition Tribunal has made some significant rul-
