Advisory Opinions

Under section 124.1 of the Competition Act, any person may apply to the Commissioner of Competition, with supporting information, for a binding written opinion regarding the application of one or more sections of the Competition Act to proposed conduct.

Written opinions are available under the following sections of the Competition Act, among others: conspiracy (section 45), criminal and civil misleading advertising (sections 52 and 74.01), deceptive telemarketing (section 52.1), other deceptive marketing practices, multi-level marketing and pyramid selling (sections 55 and 55.1), performance claims (section 74.01(1)(b)), promotional contests (section 74.06), resale price maintenance (section 76), exclusive dealing / tied selling / market restriction (section 77), abuse of dominance (section 79) and the civil agreements section of the Act (section 90.1).

Written opinions can be a practical way to obtain comfort from the Competition Bureau for some types of proposed business practices that could potentially raise issues under Canadian competition law. Advisory opinions, however, are only available for proposed conduct (i.e., for future proposed activities).

Importantly, the Commissioner of Competition has discretion under the Competition Act to issue advisory opinions and may consider factors including whether the Competition Bureau’s recommended information requirements to apply for an opinion have been met, facts are uncertain or hypothetical or issuing a written opinion might interfere with an ongoing examination or inquiry.

A written opinion, if issued, will state whether, in the Commissioner of Competition’s opinion, particular sections of the Competition Act included in the request apply to the proposed conduct.

Importantly, however, that the Competition Bureau has narrowed the scope of advice provided under such opinions. The Competition Bureau’s current policy is not to provide an assessment of the effects on competition of proposed conduct. The Bureau will also not provide an opinion on the application of potential defences. In addition, there are some sections of the Competition Act that do not currently fall within the Commissioner of Competition’s policy for written opinions. As such, while the Competition Act refers to “any provision of the Act”, the Commissioner exercises his discretion in issuing opinions in relation to some topics and sections of the Competition Act.

Written opinions are typically sought with confidentiality requests, including invoking section 29 of the Competition Act and the Competition Bureau’s policies and procedures relating to confidentiality.  Section 29 sets of the Competition Act sets out confidentiality protections for information provided to the Competition Bureau including voluntarily provided information (as in the case of written opinion applications under section 124.1).

Advisory opinions, if issued, are binding on the Commissioner of Competition if all of the material facts have been submitted, they are accurate and for as long as the relevant facts remain substantially unchanged.

The Competition Bureau has issued guidelines for what it recommends be included in written advisory opinion applications.

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We are a Toronto based Canadian competition and advertising law firm that helps clients in Toronto, across Canada and the United States practically navigate Canada’s advertising and marketing laws and offers Canadian advertising/marketing law services in relation to print, online, new media, social media and e-mail marketing.

Our Canadian advertising/marketing law services include advice in relation to anti-spam legislation (CASL), Competition Bureau complaints, the general misleading advertising provisions of the federal Competition Act, Internet, new media and social media advertising and marketing, promotional contests (sweepstakes) and sales and promotions. We also provide advice relating to specific types of advertising issues, including performance claims, testimonials, disclaimers, drip pricing, astroturfing and native advertising.

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