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CCCA_V7No4_CompetitionLaw-FIN_CCCA 13-11-25 12:59 PM Page 37 Feature that date back decades and have not been used and have been with an arrangement where we can actually share information found to be dysfunctional as they pertain to abuses or alleged and provide them with undertakings that information provided to abuses of IP rights. Current provisions also contemplate that IP us will not be used against individuals. rights supersede competition issues […] Internationally, all com- petition agencies are reconsidering whether or not that’s the CCCA: What are your thoughts on the use of wiretaps in class right approach. The bottom line is that it doesn’t permit competi- actions? tion authorities to be overly active where there are abuses of Pecman: Well, with respect to the issue of the plaintiffs using patent assertions for example. So we would be interested in tak- information obtained during criminal investigations to pursue ing a closer look at how we can become more active to ensure class actions, this is a matter that has been argued before the that there aren’t these types of abuses that thwart innovation courts in Quebec. Clearly the courts have indicated their dispo- and competition. sition that information should be made available to the plaintiff so they can pursue their civil liability issues. […] There’s a mat- CCCA: What are the challenges posed by the different antitrust ter now before the Supreme Court of Canada where the defen- regimes in Europe and North America? dants in the gasoline [price-fixing] investigation are seeking a Pecman: The U.S., ourselves, the OFT in the U.K., ACCC in decision to prevent the plaintiffs from obtaining evidence that New Zealand all have criminal cartel provisions which contem- was gathered during the course of our investigations. We’re plate jail time for offenders. In an administrative system you’re observers for the most part; we’ll see where the court lands. But just looking at financial penalties imposed on the company – clearly there’s significant costs imposed upon the Bureau as a it’s the cost of doing business. We don’t believe it provides the result of the information that has to be provided to the plaintiffs right incentive to deter the conduct, but we don’t want to quar- in the current, if the current case law stands in that we have to rel with the European model: that’s the one they’ve chosen. vet all the information for privacy considerations. So it imposes We want to work with them, we want to co-ordinate in our a significant burden on our organization over and above the ini- investigations and in our remedies. And so there are some tial investigation and prosecution. issues with regards to sharing information given the fact that we have a criminal regime. We’re working right now to come up This interview was edited and condensed for publication HIVER 2013 CCCA Canadian Corporate Counsel Association 37