Section 74.1 — Competition Act: Determination of reviewable conduct and judicial order

If, on application by the Commissioner or a person granted leave under section 103.1, a court determines that a person is engaging in or has engaged in reviewable conduct under this Part, the court may order the person not to engage in the conduct or substantially similar reviewable conduct; to publish or otherwise disseminate a notice, in such manner and at such times as the court may specify, to bring to the attention of the class of persons likely to have been reached or affected by the conduct, the name under which the person carries on business and the determination made under this section, including a description of the reviewable conduct, the time period and geographical area to which the conduct relates, and a description of the manner in which any representation or advertisement was disseminated, including, where applicable, the name of the publication or other medium employed; to pay an administrative monetary penalty, in any manner that the court specifies, in an amount not exceeding in the case of an individual, the greater of $750,000 and, for each subsequent order, $1,000,000, and three times the value of the benefit derived from the deceptive conduct, if that amount can be reasonably determined, or in the case of a corporation, the greater of $10,000,000 and, for each subsequent order, $15,000,000, and three times the value of the benefit derived from the deceptive conduct, or, if that amount cannot be reasonably determined, 3% of the corporation’s annual worldwide gross revenues;

and in the case of conduct that is reviewable under paragraph 74.01(1)(a), to pay an amount, not exceeding the total of the amounts paid to the person for the products in respect of which the conduct was engaged in, to be distributed among the persons to whom the products were sold — except wholesalers, retailers or other distributors, to the extent that they have resold or distributed the products —

in any manner that the court considers appropriate. An order made under paragraph (1)(a) applies for a period of ten years unless the court specifies a shorter period. No order may be made against a person under paragraph (1)(b), (c) or (d) if the person establishes that the person exercised due diligence to prevent the reviewable conduct from occurring. The terms of an order made against a person under paragraph (1)(b), (c) or (d) shall be determined with a view to promoting conduct by that person that is in conformity with the purposes of this Part and not with a view to punishment. Any evidence of the following shall be taken into account in determining the amount of an administrative monetary penalty under paragraph (1)(c): the reach of the conduct within the relevant geographic market; the frequency and duration of the conduct; the vulnerability of the class of persons likely to be adversely affected by the conduct; the materiality of any representation; the likelihood of self-correction in the relevant geographic market; the effect on competition in the relevant market; the gross revenue from sales affected by the conduct; the financial position of the person against whom the order is made; the history of compliance with this Act by the person against whom the order is made; any decision of the court in relation to an application for an order under paragraph (1)(d); any other amounts paid or ordered to be paid by the person against whom the order is made as a refund or as restitution or other compensation in respect of the conduct; and any other relevant factor. For the purposes of paragraph (1)(c), an order made against a person in respect of conduct that is reviewable under paragraph 74.01(1)(a), (b), (b.1) or (c), subsection 74.01(2) or (3) or section 74.011, 74.02, 74.04, 74.05 or 74.06 is a subsequent order if an order was previously made against the person under this section in respect of conduct reviewable under the same provision; the person was previously convicted of an offence under the provision of Part VI, as that Part read immediately before the coming into force of this Part, that corresponded to the provision of this Part; in the case of an order in respect of conduct reviewable under paragraph 74.01(1)(a) or section 74.011, the person was previously convicted of an offence under section 52, or under paragraph 52(1)(a) as it read immediately before the coming into force of this Part; or in the case of an order in respect of conduct reviewable under subsection 74.01(2) or (3), the person was previously convicted of an offence under paragraph 52(1)(d) as it read immediately before the coming into force of this Part. In determining an amount to be paid under paragraph (1)(d), the court shall take into account any other amounts paid or ordered to be paid by the person against whom the order is made as a refund or as restitution or other compensation in respect of the products. The court may specify in an order made under paragraph (1)(d) any terms that it considers necessary for the order’s implementation, including terms specifying how the payment is to be administered; respecting the appointment of an administrator to administer the payment and specifying the terms of administration; requiring the person against whom the order is made to pay the administrative costs related to the payment as well as the fees to be paid to an administrator; requiring that potential claimants be notified in the time and manner specified by the court; specifying the time and manner for making claims; specifying the conditions for the eligibility of claimants, including conditions relating to the return of the products to the person against whom the order is made; and providing for the manner in which, and the terms on which, any amount of the payment that remains unclaimed or undistributed is to be dealt with. On application by the Commissioner or the person against whom the order is made, the court may vary any term that is specified under subsection (8). In considering an application by a person granted leave under section 103.1, the Tribunal may not draw any inference from the fact that the Commissioner has or has not taken any action in respect of the matter raised by the application.