Competition Policy Council Calls For Clarification Of Regulated Conduct Doctrine

On November 20, 2012, the C.D. Howe Institute's Competition Policy Council—a group comprised of top-ranked academics and practitioners active in competition policy—published a report calling for the Competition Bureau to clarify the scope of the Regulated Conduct Doctrine ("RCD") and characterizing it as a "back door route to cartels". The RCD is a legal doctrine enshrined in section 45(7) of the Competition Act which immunizes regulated entities from prosecution in circumstances where their conduct would otherwise be illegal under the Act. It was described by Grange J.A. in R. v. Independent Order of Foresters:

"The doctrine simply means that a person obeying a valid provincial statute may, in certain circumstances, be exempted from the provisions of a valid federal statute. But there can be no exemption unless there is a direction or at least an authorization to perform the prohibited act."