Mark Warner was interviewed on Bloomberg Canada about trade issues arising in the North American Leaders Summit (June 29, 2016) and commented on the proposed trilateral coordinated compliance efforts and information sharing regarding the enforcement of anti-dumping and countervailing measures on steel products. Mr. Warner also discussed Republican Presidential candidate Donald Trumps threat to withdraw the United States from the North American Free Trade agreement (NAFTA) and proposed “Buy American” preferences for steel used in U.S. infrastructure  projects.  Mr. Warner, a Canadian and U.S. lawyer, has advised governments on trade policy and trade negotiations and previously worked on trade and competition issues as counsel in the OECD Trade Directorate. Mr. Warner was Legal Director of the Ontario Ministry of Economic Development & Trade and advised Ontario in the Canada-EU Trade Agreement (CETA) negotiations and on several NAFTA Chapter 11 Investor-State Arbitrations. He is co-author of a leading Canadian trade law treatise, has also published numerous articles and has been invited to speak at conferences around the world.

Mark Warner was asked to comment in the National Post (June 28, 2016) and CBC News (June 30, 2016) about Republican Presidential candidate Donald Trump’s protectionist trade policy speech threatening to renegotiate or withdraw from the North American Free Trade Agreement (NAFTA) and to withdraw from the Trans-Pacific Partnership Agreement (TPP). Mr. Trump also promised to ramp up the use of trade remedy laws and “Buy American” preferences for steel used in U.S. infrastructure  projects. Mr. Warner, a Canadian and U.S. lawyer, has advised governments on trade policy and trade negotiations and previously worked on trade and competition issues as counsel in the OECD Trade Directorate. Mr. Warner was Legal Director of the Ontario Ministry of Economic Development & Trade and advised Ontario in the Canada-EU Trade Agreement (CETA) negotiations and on several NAFTA Chapter 11 Investor-State Arbitrations. He is co-author of a leading Canadian trade law treatise, has also published numerous articles and has been invited to speak at conferences around the world.

Mark Warner was interviewed on CBC News Network (June 27, 2016) and AM980 in London, Ontario (June 28, 2016) about what the North American Free Trade Agreement (“NAFTA”) has done for Canada in the wake of a poll showing one in four Canadians say NAFTA is good for Canada, and more than one-third want it renegotiated.  Mr. Warner was Legal Director of the Ontario Ministry of Economic Development & Trade and advised Ontario in the CETA negotiations and on several NAFTA Chapter 11 Investor-State Arbitrations. Mr. Warner, a Canadian and U.S. lawyer, has advised governments on trade policy and trade negotiations and previously worked on trade and competition issues as counsel in the OECD Trade Directorate. He is co-author of a leading Canadian trade law treatise, has also published numerous articles and has been invited to speak at conferences around the world.

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Mark Warner was interviewed on BNN about TransCanada’s NAFTA Chapter 11 investor-state Request for Arbitration filed against the United States Government. (June 24, 2016) Mr. Warner was Legal Director of the Ontario Ministry of Economic Development & Trade and advised on various NAFTA Chapter 11 investor-state arbitration cases involving Ontario . Mr. Warner has advised governments on trade and investment policy and trade negotiations and previously worked on trade and competition issues as counsel in the OECD Trade Directorate.

Mark Warner was interviewed about the June 23, 2016 United Kingdom referendum on leaving the European Union (Brexit) and the Canada-European Union Trade Agreement (CETA) in print on TVO (May 24, 2016),  Financial Post, CBC on television on CBC Power & Politics (June 24, 2016),  BNN and CBC The National (June 27, 2016). Mr. Warner was Legal Director of the Ontario Ministry of Economic Development & Trade and advised Ontario in the CETA negotiations and on several NAFTA Chapter 11 Investor-State Arbitrations. Mr. Warner, a Canadian and U.S. lawyer, has  previously worked on trade and competition issues as counsel in the OECD Trade Directorate. As a partner in a leading boutique law firm in Brussels specializing in European and international law, Mr. Warner negotiated with European Commission Competition officials the first ever notified merger of companies from accession countries (Polish and Czech oil companies) following EU expansion in 2004.

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[From 1:34 – 2:04]

Mark Warner was invited to react to about Prime Minister Trudeau’s comments about criticism of the North American Trade Agreement (NAFTA) in the U.S. election campaign in a BNN interview. (June 9, 2016) Mr. Warner was Legal Director of the Ontario Ministry of Economic Development & Trade and advised Ontario in the CETA negotiations and on several NAFTA Chapter 11 Investor-State Arbitrations. Mr. Warner, a Canadian and U.S. lawyer, has advised governments on trade policy and trade negotiations and previously worked on trade and competition issues as counsel in the OECD Trade Directorate.

Competition Bureau Conducting Criminal Probe in Ontario Condo Renovation Market

Mark Warner and Steve Szentesi

(May 26, 2016) Earlier today, the Globe and Mail reported that the Canadian Competition Bureau (Bureau) has launched a widespread criminal investigation into the condominium renovation industry in Ontario. See: here.

According to the Globe, the focus of the Bureau’s investigation appears to be potential criminal conspiracy and bid-rigging in the provision of renovation services to condominiums from 2006-2014 with more than 100 condominium boards being compelled to produce records (which appear to be by way of section 11 orders under the Competition Act).

While the Competition Bureau conducts criminal investigations in private, theGlobe’s reporting indicates that this investigation follows earlier compulsory production orders served on renovation companies, that the focus of the probe is the renovation firms (and possibly condo management firms) and not condominium owners and is in relatively early stages.

A Bureau spokesperson was interviewed in connection with the investigation. However, is not clear whether the Bureau may proceed or against whom – for example, whether the Bureau may seek prosecution against any of the renovation companies targeted in the investigation, condominium management firms or others, grant immunity or leniency to any of those involved or enter into settlements with targets.  No violations of theCompetition Act have yet been established.

This case is, however, very interesting and raises a number of important issues for companies and individuals that may be involved in the Bureau’s investigation. These include whether they have violated the Competition Act, should seek immunity or leniency from the Bureau or obtain advice relating to potential criminal exposure related to the document production process (or more broadly).

The case also shows the Bureau’s interest in pursuing competition in high-consumer-impact sectors, including real estate and construction. In the real estate sector, it follows the recent landmark TREB abuse of dominance case. See here.

From a competition compliance and conspiracy/bid-rigging perspective, condominium corporations may also consider seeking advice related to potential criminal or civil exposure in relation to the Bureau’s production orders and enhancing or adopting guidelines and procedures to reduce the potential of collusion or bid-rigging among competing suppliers to their corporations.

Condominium owners and boards who believe they may have suffered loss or damage as a result of any of the alleged anti-competitive conduct under investigation by the Bureau may wish to consider the scope for actions to recover those damages under the private remedy set out in section 36 of theCompetition Act.

It is also worth noting that the Ontario Condominium Act was amended in December 2015 to forbid condominium corporations from entering into certain contracts or transactions unless the procurement process meet certain requirements to be prescribed in a regulation.  To date section 39.1 has not yet been proclaimed by the Lieutenant Governor and the associated regulations have yet to be published.

The Ontario Ministry of Government and Consumer Services that is responsible for the Condominium Act has indicated that the regulations will likely require sealed bids for certain procurement transactions and set out the procedures that would need to be followed and under what circumstances (e.g., for contracts exceeding a certain value). In light of the Globe’s article, condominium boards may wish to consider making representations to the Ministry about the regulations that are in the process of being drafted if they have not already done so.

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Mark is a former Acting Legal Director of the Ontario Ministry of Consumer Services which administers the Condominium Act (Ontario) and in that role was responsible for prosecutions under the Consumer Protection Act (Ontario). The Ministry is also responsible for two administrative authorities that enforce certain real estate-related consumer protection laws – the Real Estate Council of Ontario and Tarion Warranty Corporation. Mark was also interviewed on Newstalk 1010 about the investigation.

In the context of Prime Minister Trudeau’s bilateral visit to Japan on the margins of the G7 Summit May 26-27, Mark Warner was interviewed on BNN about Canada-Japan trade and the Trans-Pacific Partnership Agreement (TPP), the upcoming UK referendum on leaving the European Union (Brexit) and the Canada-European Union Trade Agreement (CETA) and criticism of the North American Trade Agreement (NAFTA) in the U.S. election campaign. (May 25, 2016) Mr. Warner was Legal Director of the Ontario Ministry of Economic Development & Trade and advised Ontario in the CETA negotiations and on several NAFTA Chapter 11 Investor-State Arbitrations. Mr. Warner, a Canadian and U.S. lawyer, has advised governments on trade policy and trade negotiations and previously worked on trade and competition issues as counsel in the OECD Trade Directorate.

Mark Warner was quoted in a Tax Notes International Article on the recent decision of the WTO Appellate Body on Panama’s challenge to certain Argentinian “defensive” measures on financial services and service providers from certain jurisdictions that do not cooperate or agree to information sharing in tax  enforcement. (April 19, 2016) The WTO Appellate Body circulated its decision on April 15th. The panel decision is particularly important in light of the recent threats by the G20, the European Union and the United States to sanction tax havens after the Panama Papers scandal. As counsel at the OECD Trade Directorate, Mr. Warner advised on harmful tax competition issues and previously worked on other trade and competition issues. Mr. Warner was Legal Director of the Ontario Ministry of Economic Development & Trade participated in the Canada-European Union Trade Agreement (CETA) negotiations including the chapters on investment and trade in services. Mr. Warner advises governments and business clients on trade policy, trade disputes and trade negotiations.

Mark Warner published a Comment in the Globe and Mail Report on Business on recent WTO dispute settlement decisions relating to tax avoidance and money laundering. (April 16, 2016) The recent Panama Papers unauthorized release of confidential documents for many offshore entities has, like the 2014 LuxLeaks release, shone a spotlight on tax havens and enforcement co-operation among tax authorities. Two recent WTO dispute settlement panel decisions involving Panama are particularly important in light of the recent threats by the G20 and the European Union to sanction tax havens after the Panama Papers scandal. The first case involves a challenge by Panama to certain Argentinian “defensive” measures on financial services and service providers from certain jurisdictions that do not cooperate or agree to information sharing in tax  enforcement. The WTO Appellate Body circulated its decision on April 15th. The second cases involves a challenge by Panama to a compound tariff imposed on textile goods by Columbia to counter alleged money laundering. The WTO Appellate Body decision in this dispute is pending.

As counsel at the OECD Trade Directorate, Mr. Warner advised on harmful tax competition issues and previously worked on other trade and competition issues. Mr. Warner was Legal Director of the Ontario Ministry of Economic Development & Trade participated in the Canada-European Union Trade Agreement (CETA) negotiations including the chapters on investment and trade in services. Mr. Warner advises governments and business clients on trade policy, trade disputes and trade negotiations.