Competition Act — C-34 75
Jurisdiction of Tribunal — cases of refusal to deal 75 (1) The Tribunal may, on application by the Commissioner or a person granted leave under section 103.1, order one or more suppliers of a product, including a means of diagnosis or repair, in a market to accept a person as a customer, or to make the means of diagnosis or repair available to a person, within a specified period and on the terms that the Tribunal considers appropriate if the Tribunal finds that (a) the person is substantially affected in the whole or part of their business or is precluded from carrying on business due to their inability to obtain adequate supplies of the product anywhere in the market on usual trade terms; (b) the person is unable to obtain adequate supplies of the product because of insufficient competition among suppliers of the product in the market; (c) the person is willing and able to meet the usual trade terms of the supplier or suppliers of the product; (d) the product is in ample supply or, in the case of a means of diagnosis or repair, can be readily supplied; and (e) the refusal to deal is having or is likely to have an adverse effect on competition in a market. Non-application (1.1) An order made under subsection (1) does not apply in the case of an article if, within the specified time, any customs duties on the article are removed, reduced or remitted and the effect of the removal, reduction or remission is to place the person on an equal footing with other persons who are able to obtain adequate supplies of the article in Canada. Additional order — person granted leave (1.2) If the Tribunal makes an order under subsection (1) as the result of an application by a person granted leave under section 103.1, it may also order any supplier in respect of whom the order applies to pay an amount, not exceeding the value of the benefit derived from the conduct that is the subject of the order, to be distributed among the applicant and any other person affected by the conduct, in any manner that the Tribunal considers appropriate. Implementation of the order (1.3) The Tribunal may specify in an order made under subsection (1.2) any term that it considers necessary for the order’s implementation, including a term (a) specifying how the payment is to be administered; (b) respecting the appointment of an administrator to administer the payment and specifying the terms of administration; (c) 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; (d) requiring that potential claimants be notified in the time and manner specified by the Tribunal; (e) specifying the time and manner for making claims; (f) 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 (g) 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. When article is a separate product (2) For the purposes of this section, an article is not a separate product in a market only because it is differentiated from other articles in its class by a trademark, proprietary name or the like, unless the article so differentiated occupies such a dominant position in that market as to substantially affect the ability of a person to carry on business in that class of articles unless that person has access to the article so differentiated. Trade secrets (2.1) Nothing in this section is to be interpreted as requiring the disclosure of any information that is a trade secret. Definitions (3) The following definitions apply in this section. means of diagnosis or repair includes diagnostic, maintenance, repair and calibration information, technical updates, diagnostic software or tools and any related documentation and service parts. ( moyen de diagnostic ou de réparation ) trade terms means terms