Law Times

LAW TIMES 12 COVERING ONTARIO'S LEGAL SCENE | FEBRUARY 25, 2019 www.lawtimesnews.com scrutiny of mergers to name a few — and whether this will lead to other changes in enforcement policies at the bureau," Facey says. The previous commissioner, economist John Pecman, was the first Competition Bureau leader who was not a lawyer. That will likely change, as the names being bandied about to replace Pecman are all lawyers. A leading candidate for the permanent appointment is the current interim commissioner, Matthew Boswell, whose term expires at the end of May. He is a former assistant Crown attorney in Toronto who was most recently senior deputy commissioner, Mergers and Monopolistic Practices Branch at the Competition Bureau. Also said to be in the mix are: Vicky Eatrides, interim senior deputy commissioner, Cartels and Deceptive Marketing Prac- tices Branch; Randall Hof ley, a Blakes partner currently serv- ing a two-year secondment as general counsel and senior en- forcement advisor with the De- partment of Justice at the Com- petition Bureau Legal Services; and Susan Hutton, a partner in the competition, foreign invest- ment and international trade groups at Stikeman Elliott LLP. "Bearing in mind that there's a commissioner but no actual commission, just who is ap- pointed will make quite a big difference because they have a ton of discretion," Facey says. "As might be expected, how- ever, the candidates who are al- ready at the commission are less likely to be friendly to business than lawyers who come from the private bar. On the other hand, the good news is that all the names I've heard are pretty rational people." Anthony Baldanza, a busi- ness law partner at Fasken Martineau Dumoulin LLP in Toronto, who focuses on com- petition law, foreign investment law and negotiated transactions, says that 2019 will also be telling with regard to the Competition Bureau's revised immunity and leniency programs. The immunity and leniency programs have been around since 2000 and 2010, respec- tively. They provide incentives for parties to come forward and co- operate with the Competition Bureau in the investigation and prosecution of others involved in anti-competitive conduct and are widely regarded as the bu- reau's most important tools for detecting criminal offences un- der the Competition Act. In September 2018, the bu- reau updated both programs. The main changes increased the incentives for those who come forward first by mak- ing immunity available only to the first applicant, eliminated automatic immunity for direc- tors, officers and employees and required applicants to provide more evidence of an offence than was previously required. According to Baldanza, the efficacy of the new program has yet to be determined. "It will be interesting to see whether the revised program gets any traction, because it's not nearly as attractive to applicants as it once was." LT Different names in the mix Problematic findings overruled added) instead of just em- ploying the word 'percentage' [in s. 4], Parliament has used language indicating that the effective annual interest need not be expressed as a nu- merical percentage," Sharpe wrote. The Court of Appeal also ruled that certain promis- sory notes that featured the discount fee and the daily rate but did not include an annu- alizing formula attracted s. 4. Sharpe concluded, how- ever, that McEwen had erred in limiting the whole of the interest payable on the prom- issory notes to the statutory five per cent, instead of ap- plying the five per cent solely to the discount fee. Although McEwen had acknowledged that this result might seem "draconian," he felt compelled to that con- clusion by what he called the "plain language" of s. 4, which states that if disclosure is in- adequate, "no interest shall be charged" at more than five per cent "on any principal money." In Sharpe's view, Mc Ewen had failed to consider the "entire context" of s. 4 before settling on its plain mean- ing, which should have taken "modern commercial realities" into account. These realities, in Sharpe's view, required the reduction to five per cent to apply only to the non-compliant dis- count fee, thereby avoiding "a harsh and draconian result where 'there plainly was no attempt to subvert the law' in a case involving "a commercial transaction between parties of equal bargaining power who inadvertently and only mar- ginally ran afoul of s. 4." If the SCC denies leave or arrives at the same result, then, it appears that far great- er certainty respecting loan agreements will prevail. "The Court of Appeal overruled two very problem- atic findings relating to s. 4," Outerbridge says. Barry Bresner, senior counsel in the commercial litigation group at Borden Ladner Gervais LLP's Toron- to office, who with associate Graham Splawski repre- sented ClearFlow, would not comment as the leave appli- cation was still before the court. LT FOCUS Anita Banicevic says the Competition Bureau even seems intent on forging into issues that are the province of other regulators. Continued from page 10 Continued from page 11 Canadian Law List 2019 gives you immediate access to: • An up-to-date alphabetical listing of more than 80,000 barristers, solicitors and Quebec notaries, corporate counsel, law firms and judges across Canada • Legal contact information for all federal and provincial courts, law societies, law schools, Legal Aid and other important law-related offices • Government contact information for Canada, the provinces and territories including cabinet ministers, departments, boards, commissions and Crown Corporations Order your copy today! Call 1.800.387.5164 or visit www.store.thomsonreuters.ca for a 30-day no risk evaluation copy. 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