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).
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Competition Bureau Preliminary Guidance on the Mergers
and Restrictive Trade Practices Provisions of the Competition Act
On November 7, 2024, the Competition Bureau issued preliminary guidance relating to the recent changes to the provisions on mergers and restrictive trade practices under the Competition Act – see: here.
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OVERVIEW OF COMPETITION BUREAU COMPLAINTS
We frequently receive inquiries from prospective clients that want to file Competition Act complaints.
Complaints to the federal Competition Bureau, which is responsible for administering and enforcing the Competition Act, may be filed by telephone, online or by submitting a written brief to the Bureau setting out the complaint and facts relating to the alleged anti-competitive conduct.
In general, many Competition Bureau complaints will be processed through a Bureau intake officer, who decides whether a complaint is likely to have merit under the Competition Act. The Competition Bureau receives thousands of complaints a year so does not and cannot act on every complaint.
As such, it is generally important to carefully prepare a complaint before filing, including arguments as to why conduct allegedly violates the Competition Act (that is, substantive legal arguments) and the relevant facts and likely anti-competitive effects, if applicable.
The Competition Bureau is also divided into several different criminal and civil law branches, which means that it can be important to evaluate which branch should receive the complaint.
It is also common to contact the Competition Bureau before lodging a competition complaint and/or arrange a meeting with Bureau officers to discuss the complaint and provide additional industry, factual and other background.
Based on the volume of complaints the Competition Bureau receives, as well as the importance of setting out substantive and market effects arguments, it can often be important to engage counsel to assist with the preparation and filing of a complaint to maximize the chances that the Bureau will commence an investigation and seek remedies.
Upon receiving a complaint, the Competition Bureau may decide not to act on the complaint, commence an informal investigation or initiate a formal inquiry.
Commencing a formal inquiry, which is an internal Competition Bureau administrative step, gives the Bureau access to certain investigative powers under the Competition Act, including the power to obtain court orders to compel the production of documents, information and the testimony of the personnel of a target or industry participants under oath.
In general, the Competition Bureau conducts inquiries in private, with complainants and targets of an investigation having limited rights to information during the investigative process.
Complainants can, however, provide significant industry information and background about competitive effects to the Competition Bureau. In this respect, complaints should be tailored to provide the maximum informational and market impact information to the Competition Bureau.
After the Competition Bureau commences an investigation, it may discontinue the investigation, seek to negotiate a settlement with the target(s) of an investigation (e.g., under a negotiated consent agreement) or commence formal civil or criminal legal proceedings (e.g., refer the matter to the Public Prosecution Service of Canada (PPSC) for a criminal prosecution or make an application to the federal Competition Tribunal for a remedial or other order, such as the payment of administrative monetary penalties).
COMPETITION ACT INVESTIGATION, ENFORCEMENT
AND REMEDIES RESOURCES
For more information about Canadian competition law investigations, enforcement and remedies, see: Advisory Opinions, Competition Act Litigation, Competition Law Enforcement, Competition Bureau Immunity and Leniency Programs, Market Studies/Inquiries and Whistleblowers.
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SERVICES AND CONTACT
We are a Toronto based competition and advertising law firm offering business and individual clients efficient and strategic advice in relation to competition/antitrust, advertising, Internet and new media law and contest law. We also offer competition and regulatory law compliance, education and policy services to companies, trade and professional associations and government agencies.
Our experience includes advising clients in Toronto, across Canada and the United States on the application of Canadian competition and regulatory laws and we have worked on hundreds of domestic and cross-border competition, advertising and marketing, promotional contest (sweepstakes), conspiracy (cartel), abuse of dominance, compliance, refusal to deal and pricing and distribution matters. For more information about our competition and advertising law services see: competition law services.
To contact us about a potential legal matter, see: contact
For more information about our firm, visit our website: Competitionlawyer.ca
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