SIGNIFICANT COMPETITION ACT AMENDMENTS CAME INTO FORCE
ON DECEMBER 15, 2023 (BILL C-56)
On December 15, 2023, Bill C-56 (An Act to amend the Excise Tax Act and the Competition Act), which introduced the first of two new significant rounds of amendments to the federal Competition Act, largely came into force.
This first new round of amendments to the Competition Act, which is intended to strengthen the ability of the Competition Bureau (Bureau) and private parties to enforce Canadian competition law and enhance competition generally in Canada, includes fundamental changes to Canadian competition law not seen since the last major amendments in 2009.
The amendments to the Competition Act under Bill C-56 include new broad powers for the Bureau to conduct market studies, changes to the core substantive test for abuse of dominance under section 79 (creating new two-track tests for abuse of dominance), increased penalties for abuse of dominance, broadening the civil agreements provision (section 90.1) to include agreements between non-competitors (i.e., to also apply to vertical agreements, such as distribution/supply agreements and vertical joint venture agreements) and repealing the efficiencies defences under section 90.1 and also for mergers under section 96.
These amendments 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 law.
The amendments introduced by Bill C-56 in December 2023 are expected to be followed by a second and more significant round of amendments contained in Bill C-59, which is currently working its way through Parliament. If passed, Bill C-59 would be the most important amendments to Canadian competition law since the current modern Competition Act replaced the former Combines Investigation Act in the 1980s.
For more information about the December 2023 amendments, see: Significant Canadian Competition Act Amendments Come Into Force (Bill C-56). See also: Competition Bureau, Guide to the December 2023 amendments to the Competition Act. For more information about Bill C-59, the second amending bill, which has not yet passed, 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 (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 details about the alleged anti-competitive conduct.
In general, many 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 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 likely anti-competitive effects, if applicable.
The Bureau is also divided into several different criminal and civil related branches, which means that it can be important to evaluate which branch should receive the complaint.
It is also common to contact the 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 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 investigation and enforcement steps.
Upon receiving a complaint, the Bureau may decide not to act on the complaint, commence an informal investigation or initiate a formal inquiry. Commencing an inquiry (an internal 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 testimony under oath.
In general, the 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 Bureau. In this respect, complaints should be tailored to provide the maximum informational and market impact information to the Bureau.
After the 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 prosecution or make an application to the federal Competition Tribunal for a remedial or other order).
Resources (Competition Act Investigations,
Enforcement and Remedies)
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 Canadian competition and advertising law firm that helps clients in Toronto, 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.
For more information about our services, see: services
To contact us about a potential legal matter, see: contact
For more information about our firm, visit our website: Competitionlawyer.ca
