Canadian COMPETITION LAW

SWEEPING CANADIAN COMPETITION ACT
AMENDMENTS (BILL C-59) PASSED JUNE 20, 2024

On June 20, 2024, Bill C-59 was passed (the Fall Economic Statement Implementation Act, 2023), which introduced the third of three significant rounds of amendments to Canada’s federal Competition Act in two years (together with Bill C-19 and Bill C-56). This new round of amendments to the Competition Act completes a sweeping overhaul of the Competition Act across virtually all key provisions of Canada’s competition legislation. These amendments are also the most significant changes to Canadian competition law since the modern Competition Act came into effect in 1986 replacing the former Combines Investigation Act.

The Bill C-59 amendments, among other things, strengthen the Competition Bureau’s powers to enforce key deceptive marketing provisions of the Competition Act (e.g., relating to drip pricing, performance claims and ordinary selling price (OSP) claims), strengthen private party rights to seek Competition Tribunal remedies (e.g., for civil deceptive marketing and violations of the civil agreements provisions of the Act), introduce new penalties (e.g., administrative monetary penalties for violating the civil agreements provisions of the Act and for reprisal actions penalizing individuals for complying with the Act) and introduce a new clearance regime for environmental protection related agreements. Canada’s Competition Act merger review regime was also substantially overhauled, eliminating the efficiency defence, introducing market share presumptions and a more restrictive remedial test for restoring competition.

These amendments, together with those enacted in June 2022 and December 2023 (Bill C-19 and Bill C-56), increase the potential competition law risk for companies, trade and professional associations and other entities, particularly those without credible and effective competition law compliance programs and that have not reviewed their business practices to reflect Canada’s new competition laws. For the Competition Bureau’s summary of the June 20, 2024 Bill C-59 amendments to the Competition Act, see: Guide to the June 2024 amendments to the Competition Act (June 25, 2024).

Our blogs will be updated to reflect these amendments.

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COMPETITION LAW SERVICES

We offer a broad range of strategic and efficient Canadian competition/antitrust law, compliance, education and policy services for companies, associations, individuals and government agencies.

Our Canadian competition law services include:

ACADEMIC

Academic, position and policy papers on Canadian competition law topics, industry courses and seminars, advocacy and other submissions on proposed guidelines and legislative changes, Competition Bureau submissions and competition law educational materials, papers and articles.

ADVERTISING

Canadian federal anti-spam law (CASL) advice, opinions and compliance programs, filing and defending against Competition Bureau complaints, advice under the general civil and criminal deceptive marketing provisions of the Competition Act, Internet, new media and social media advertising and marketing related advice, promotional contests/sweepstakes and advice in relation to sales and other types of promotions.

We also offer advice relating to specific types of Canadian advertising/marketing law issues, including performance claims, testimonials/endorsements, influencer marketing, influencer agreements, disclaimers and online disclosures, drip pricing, native advertising, astroturfing and Canadian advertising/marketing law related agreements (e.g., influencer, co-sponsor and list sharing agreements).

ASSOCIATIONS

Trade association competition law programs, competition law compliance seminars and talks for association executives, audits and compliance reviews of trade association activities, Competition Act advice and opinions for associations, vetting trade association meetings, conventions and communications, reviewing trade association rules, bylaws, policies and voluntary codes of conduct for Competition Act compliance, filing and defending against Competition Bureau complaints and investigations, general competition law and compliance advice, conduct of meeting guidelines, search and seizure guidelines, information exchange guidelines (e.g., relating to industry surveys or benchmarking exercises) and assisting with marketplace and competitor issues.

COMPLIANCE

Competition law compliance programs and policies, competition law compliance guidelines, competition law seminars for companies, trade associations and other organizations, competition law talks and lunch-and-learns for companies and law firms, guidelines for board meetings, conferences and other meetings, conduct of meeting guidelines, search and seizure guidelines, information exchange guidelines (e.g., for industry surveys or benchmarking exercises) and document retention programs.

COMPETITOR COLLABORATIONS

Advice on the application of the criminal conspiracy (section 45) and civil agreements (section 90.1) provisions of the Competition Act to commercial agreements, joint ventures and agreements, structuring agreements and joint ventures and strategic alliances to comply with the Competition Act, competition law compliance programs for companies and trade associations, conduct of meeting guidelines for meetings involving competitors, advice relating to information exchanges and benchmarking projects involving competitors, standard-setting projects, buying groups and trade and professional association activities.

COMPLAINTS AND ADVOCACY

Advice and strategy relating to filing and defending against Competition Act complaints, research and opinions to assess the strength of Competition Act complaints, advice in relation to dealing with the Competition Bureau in investigations, advice relating to Competition Bureau advocacy and drafting and filing advocacy submissions to the Competition Bureau.

CONTESTS

Advice in relation to the application of the Competition Act and Criminal Code to Canadian promotional contests/sweepstakes, CASL (Canadian federal anti-spam law) advice for electronic marketing in connection with promotional contests/sweepstakes, short and long contest rules and statutory disclosures, reviewing draft contest creative materials for Competition Act compliance, winner release forms and companion release forms (e.g., for trip contests), compliance with the general misleading advertising provisions of the Competition Act and drafting contest/sweepstakes related agreements (e.g., influencer, co-sponsor and contest indemnity agreements).

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Do you need contest rules and forms for a
Canadian contest/sweepstakes?

We offer Canadian contest rules and forms for random draw, skill and other common types of Canadian contests (i.e., contest precedents and forms). For more information see: Contest Forms.

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CRIMINAL COMPETITION LAW MATTERS

Competition law compliance programs and policies, guidelines to avoid violating the criminal provisions of the Competition Act, bid-rigging compliance advice for companies, bidding consortia and procurement agencies, advice relating to the criminal conspiracy (cartel) provisions of the Competition Act, filing and defending against Competition Bureau complaints, assisting joint venture and strategic alliance partners avoid Competition Act criminal offences, guidelines and advice for meetings between competitors and information exchanges, surveys and benchmarking exercises involving competitors.

INVESTIGATIONS

Advice in relation to criminal and civil searches, criminal investigations and inquiries, compulsory production orders (section 11 orders), the Competition Bureau’s Immunity and Leniency Programs, search and seizure guidelines and corporate document retention programs.

PRICING AND DISTRIBUTION MATTERS

Advice in relation to the pricing and distribution related provisions of the Competition Act, including abuse of dominance related matters (e.g., exclusive dealing and refusals to deal/supply), price maintenance (e.g., refusals to deal/supply, MAP, MSRP and resale price policies), refusals to deal or supply, distributor and dealer agreements, distributor territory issues, buying groups and collective refusals to purchase, dealer/distributor terminations, exclusive dealing and tied selling.

REFUSALS TO DEAL

Advice on the application of the Competition Act to unilateral and concerted refusals to deal, filing Competition Bureau complaints in relation to refusals to deal matters, issues in relation to supply and distribution agreements and structuring terminations of supply to minimize risk to manufacturers and distributors.