I would swear that I was a millionaire and a boat owner and I won a car all this weekend just by simply opening the mail, except of course that it was all bogus. I will not win anything and I know it. All that went into the big, round filing cabinet.
The bill would force people to say what the prizes are. Also, in regard to these bogus contests that basically say “Send me $500 and it will take you to the next step” the bill would make people provide details for those who are easily deceived or perhaps not sure of what the laws are. It would force companies to put that front and centre in these deceptive contests. I guess it really does come down to the caveat emptor and buyer beware business, but at least the notice would appear on the front of documents. That is a good thing.
There is another thing that the amendments we worked through specifically brought to the Competition Act, and it is the big ticket item, the right to private access. This was in one of the bills brought forward by the member for Pickering--Ajax--Uxbridge. The right to private access was quite contentious in committee and basically broke down along two lines. It seemed that the bigger the business or the more omnipresent the business the less likely it was to be in favour of right to access. The Canadian Federation of Independent Business was in favour of private access.
Private access allows private businesses to initiate an action if they feel they are the victims of anti-competitive behaviour. The way it is right now, if this bill did not pass, for example, they apply to the commissioner and the commissioner may or may not approve it. He may say it is too regional, too local or not within his purview. The right to private access allows private parties, any company or individual, to apply directly to the tribunal for remedies concerning everything from refusal to deal or tied selling, market restriction, exclusive dealings and so on. The tribunal would be able to deal on that without the commissioner's blessing, so to speak.
The commissioner is in favour of this. He does not feel like he is getting the shaft or anything. He is perfectly happy with it. The tribunals will rule. The commissioner may even at times join with the plaintiff in the case if he thinks it is a good case. If he thinks it is integral to future jurisprudence, for example, he may join in and actually take part in the tribunal case. The important thing is that private companies will have direct access to the tribunal for the first time. We heard many people testify that they would like the privilege of doing that. I think if they want it they should be allowed to do it just like they would in any other court case.
I would caution people who think it is a panacea. There is no doubt that a private right to access case is an expensive business. It costs a lot of money and is a very specialized type of litigation. Those who want to start it had better be pretty sure of what they are doing and be prepared to fork over a good amount of money. These things take a long time and are not cheap. That being said, it is up to individual companies to make that move. If they feel they have winnable cases, more power to them.
There was also an amendment that came through at the committee stage. The initial draft of the bill stated that in order to receive costs from one of these private litigations, vexatious action had to be proven on behalf of the other party. In other words, it was to prevent someone from bringing something forward just to be nasty, to drag it through the courts, to tie another person up. It was basically the same sort of thing as a libel chill on a competitive business. We removed that standard of having to prove vexatious behaviour. We just said that if someone wins the case and deserves costs he or she should not have to prove that the other party was vexatious or malicious. A person should just have to prove that it was a very strong case, won fair and square on the same common law rules as anyone else. That initial proposal was removed and I think the bill was strengthened because of that.
There would not be triple damages, though, which is the American experience. The American experience is to allow people to bring a private access case. If they win the case they are awarded triple damages. It is a very punitive system, in which someone could say “I spent a couple of million dollars taking IBM to court, I won the case and IBM owes me 6 million bucks just for my court costs because I get triple costs”.
In Canada we have decided to take a different and, I think, more prudent course. We are saying that if people win the case, they get the rulings, they get the interim orders and they get the anti-competitive actions to stop, but we do not make this a windfall for the lawyers and for people who just want to spend their days in court. I know a few people who love going to court. I will not mention names, but they seem to want to go court at the drop of a hat. There is a simple statement in the news or something and before long people are in court; they seem to think this is a good way to make a living. They will not make a living under this bill.
Under the bill the costs would come back but that is all. People would not get triple damages. Hopefully that would keep most of the sharks out of this pond and allow people who are really concerned about anti-competitive behaviour to actually deal with that issue by itself and not make this just a money making enterprise for the lawyers who specialize in this.
If I may, I will mention again that overall the bill would strengthen the current Competition Act. It would allow the right for private access, something that we support. However, it does it in a way that would restrict lawyers from making a killing on it, so to speak. I think that is proper. It would restrict the ability to do deceptive mass mailings to create the impression that people could win a big prize if only they would fork over a little bit of money. That is proper.
The bill streamlines the tribunal process, which is good. We heard a lot of testimony from people urging the tribunal to put together a proper case management system so that the number of witnesses and so on is not restricted. Instead of endless debate, then, we would have a case management system that would allow things to go forward, as the justice minister would say, in a timely and proper fashion. That would certainly be the case if the government were to do that case management more judiciously.
The bill would allow for temporary orders or interim orders if there is some sort of anti-competitive behaviour that is injurious to someone in a way such that the commissioner says it has to be stopped right away. In some cases he would be able to put forward a cease and desist order to stop irreparable harm being done to a business.
Overall, I believe, the bill should be supported at this stage. I again urge the government to think in terms of leaving the Competition Act as framework legislation and trying to fix the other industry problems, whether it is banking or airlines or whatever it might be.
The government should get into the game when it comes to creating a competitive transportation system. The transportation system is not fixed with the act because we cannot force competition in this, we can only prohibit anti-competitive behaviour. To get competition we need good transport policy. We do not have good transport policy in the country and that is the reason we have seen the demise of six airlines in the last two years.
The legislation as is, I believe, will work. I think it is worth a try for those who have expressed concerns about it. We will be watching to make sure it does not get out of hand, but at this stage I do believe it is the best compromise we could come up with. I do believe it is a good balance. I would urge that the other industry specific problems be addressed by those ministers in charge of those specific industries.