Tag Archives: Canadian Competition Lawyer

Mark Warner was interviewed by the Canadian Press about Bombardier’s debarment risks under the Canadian government Integrity Regime for public procurement following its bid-rigging conviction in Brazil. (July 9, 2019)  Mr. Warner was Legal Director of the Ontario Ministry of Economic Development & Trade providing strategic legal advice with respect to the Ontario’s economic development, research and innovation grants and loans to corporations including Bombardier. In addition, Mr. Warner provided advice to the Government of Ontario on NAFTA and WTO trade and investment negotiations and dispute settlement matters, including the Agreement on Internal Trade and the Canada-U.S. Agreement on Government Procurement. Mr. Warner, a Canadian and U.S. lawyer, advises governments, companies and industry associations on trade policy and trade negotiations and previously worked on trade and competition issues as counsel in the OECD Trade Directorate, including trade law advice on the OECD Export Credits Arrangement.

Mark Warner discussed the new bid to take over Air Transat, Canada-China trade dispute developments, the potential sale of Bombardier‘s regional jet program and Toronto Raptors Kawhi Leonard / Nike copyright / trademark law suit on the CC Weekend Business Panel. (June 8, 2019) Mark was Legal Director of the Ontario Ministry of Economic Development & Trade advising on trade negotiations and dispute settlement and on economic development, research and innovation grants and loans to corporations, including Huawei. Mr. Warner, a Canadian and American lawyer,  previously worked on trade and competition issues as counsel in the OECD Trade Directorate. Mark has been an adviser to the Governments of Cambodia, Indonesia, Thailand and Vietnam on competition and trade policy and at the invitation of the U.S. Department of State lectured in five cities in Japan on international antitrust law and policy. As Assistant Director of the University of Baltimore’s Centre for International and Comparative Law, Mark hired a Chinese scholar to begin a research program on reforming anti-monopoly law in China, one of the first such efforts at the time. He is frequently interviewed in print, radio and television on the Trans-Pacific Partnership Trade Agreement.  Mark is an original ICANN domain name dispute arbitrator and current WIPO domain name neutral.

Mark Warner was invited to participate in the Canadian Competition Bureau Data Forum in Ottawa on May 30th, 2019. The workshop featured speakers from business, academia, the legal community, and government, both domestic and international. Participants discussed: the role of antitrust in keeping pace with digital platforms; the boundaries between privacy and competition; the future of data portability and interoperability; and the regulatory and enforcement landscape.

Mark chaired an Insight Research Canadian Sharing Economy Symposium in Toronto in 2015. As a former Acting Legal Director for the Ontario Ministry of Consumer Services, Mark was responsible for prosecutions under the provincial consumer protection laws and regulations. Mark’s experience with online technologies and e-commerce includes: participating in OECD-wide policy work on laws and regulations affecting e-commerce, acting as Chair, ICC Competition Commission Working Party on E-Commerce and Competition Policy, serving as an original ICANN domain name dispute resolution arbitrator for eResolution and WIPO and as Rapporteur of the Hague Conference on Private International Law Commission on Jurisdiction for Torts in Electronic Commerce.

Mark Warner was interviewed on Newstalk 1010 discusses the issues involved in the decision of the Director of Public Prosecutions not to invite SNC-Lavalin to negotiate a “remediation agreement” (deferred prosecution agreement) in connection with certain criminal charges in relation to the Corruption of Foreign Public Officials Act. (February 28, 2019) Mr. Warner is a Canadian and U.S. lawyer who has practiced in Toronto, Washington, DC and New York and has advised governments on trade policy and trade negotiations. Mr. Warner worked on trade and competition issues as counsel in the OECD Trade Directorate and participated in the negotiation of the OECD Anti-Bribery Convention. Mr. Warner was also Legal Director of the Ontario Ministry of Economic Development & Trade led the Province’s legal team for the insolvency / restructuring of General Motors and Chrysler, led Ontario’s legal team in the CETA negotiations, provided advice on the design of the Green Energy Act and related WTO dispute settlement proceedings, advised on various NAFTA Chapter 11 investor-state arbitration and on procurement issues in the Canada-U.S. Agreement on Government Procurement. 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.

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.