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On September 18, 2023, Bill C-352, which was introduced by Jagmeet Singh (leader of the NDP), had its first reading in the House of Commons (the “Singh Bill”). On September 21, 2023, Bill C-56, which was introduced by Chrystia Freeland (Deputy Prime Minister and Minister of Finance), also received its first reading in the House of Commons (the “Government Bill”). Each of these bills includes significant proposed amendments to the Competition Act in response to the ongoing public consultation and legislation review process regarding competition policy in Canada.

While each of the bills share some similarities (including, for example, the introduction of market study powers and removal of the efficiencies defence), the bills include a number of different proposals and the Singh Bill includes overall more substantive recommendations for amendments to Canada’s existing competition law regime.…

Continue Reading Proposed Amendments to the Competition Act receive first reading in House of Commons

In an unprecedented intervention by the European Commission (EC), the EC recently asserted jurisdiction over and challenged a United States-based merger that falls below the filing thresholds of the EC and each and every European Union Member State. This action threatens to subject future merger transactions with no material connection to European commerce to merger control by the EC. An extraordinary Statement of Concerns, signed-on by former senior competition law agency leaders and competition law experts from around the world, recently published in Concurrences highlights the harmful implications of the overreach by the EC for predictable global competition law enforcement.  Also, in another first, five former Competition Commissioners from Canada are jointly waving the red flag with respect to the EC’s disregard of well-accepted norms established by the Organization for Economic Cooperation and Development (OECD) and the International Competition Network (ICN) as well as longstanding jurisprudence concerning jurisdiction for the purpose of international merger review.…

Continue Reading Buyer Beware!  Aggressive Competition Watchdogs Trying to Block More International Deals – a cautionary tale from the Illumina-GRAIL merger challenge

On June 27, 2023, the Competition Bureau  (the “Bureau”)  released its “Retail Grocery Market Study Report” (the “Report”). The Report is the result of the October 24, 2022 announcement by the Bureau that it would conduct a study of grocery store competition in Canada.

The Report observes that grocery prices have been rising and suggests this is in part because Canada’s grocery industry is concentrated and has high entry barriers. The Report concludes that increased competition in the industry is part of the solution. The balance of the Report is devoted to explaining the basis for the Report’s conclusions and exploring and recommending steps for achieving increased competition.…

Continue Reading “Canada Needs More Competition”: Competition Bureau Releases its Retail Grocery Market Study Report

In the March 30, 2023 comments submitted by Fasken[1] in response to the Government of Canada’s consultation and discussion paper[2] on the Future of Competition Policy in Canada (the “Discussion Paper”), significant concerns are raised about any amendments that move away from identifying anti-competitive conduct through evidence-based assessment of its effects and which would establish ex ante regulation to place blanket prohibitions on certain types of conduct by certain firms. In a paper recently published by the Competition Policy International[3], we examine the international and Canadian debate around ex ante regulations for Big Tech platform companies. The paper explores the need for and costs associated with ex ante regulation and concludes that pursuing such regulations at this time in Canada would be ill-advised.…

Continue Reading Canada Should Avoid Costly Ex Ante Regulation of Digital Markets

As discussed in our previous blog post, on November 17, 2022, the Honourable François-Philippe Champagne, Minister of Innovation, Science and Industry, launched the much anticipated public consultation on the second stage of potential amendments to the Competition Act (the “Act”).

As part of this consultation process, the Department of Innovation, Science and Economic Development (“ISED”) issued a discussion paper, titled The Future of Competition Policy in Canada (the “Discussion Paper”), which considers numerous issues and potential areas of reform, including in the mergers, unilateral conduct, competitor collaboration, deceptive marketing and administration/enforcement context. The Discussion Paper does not include any particular recommendations or proposed amendments to the Act. Rather, it simply sets the stage and invites feedback from interested stakeholders on the issues and potential areas of reform. Feedback can be provided on or before February 27, 2023.

To help businesses better understand the issues and potential areas of reform included in the Discussion Paper, we are releasing a series of blog posts discussing these issues and potential areas of reform on a topic-by-topic basis. This is the fifth and final blog post in the series, which is focused on administration and enforcement of the law.…

Continue Reading Administration and Enforcement of the Law – Does the Government intend to give the Competition Bureau a stronger enforcement regime?

The Trudeau government’s plan for a quick and easy win on competition law reform owing to public pressure to tame the large digital platforms will result in significant changes to the Competition Act being pushed through with little to no scrutiny because there is not enough time to properly consult and debate the proposed reforms under the Budget Implementation Act (“BIA”) process.  While Justin Trudeau campaigned to control the use of omnibus budget bills, he continues their use even for significant amendments to economic framework legislation.  …
Continue Reading Rapid passage of Competition Act amendments through Budget Implementation Act process can cause more harm than good

Recognizing the critical role of the Competition Act (the “Act”) in promoting dynamic and fair markets, Canada’s Minister of Innovation, Science and Industry, the Honourable François-Philippe Champagne, announced on February 7, 2022 that he would carefully evaluate potential ways to improve its operation. This included, among other things, adapting the law to today’s digital reality to better tackle emerging forms of harmful behaviour in the digital economy; tackling wage-fixing agreements; modernizing the penalty regime to ensure that it serves as a genuine deterrent against harmful business conduct; more clearly addressing drip pricing; increasing access to justice for those injured by harmful conduct; and fixing loopholes that allow for harmful conduct. During an interview with the Toronto Star, the Minister suggested that this was the first step in a “comprehensive” review of the Act.
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Continue Reading Significant Amendments to Competition Act Coming Soon

Competition, marketing and foreign investment law saw a number of changes in the past year. Many of these changes were in response to the continuing COVID-19 pandemic, which has significantly changed the way Canadians, businesses and government agencies operate. Despite the pandemic, the Competition Bureau (the “Bureau”) has actively continued its enforcement activity and provided a number of guidance documents to help businesses stay onside the Competition Act (the “Act”). Similarly, Canada’s Investment Review Division (“IRD”) of Innovation, Science and Economic Development Canada (“ISED”) has also responded to the challenges resulting from the pandemic.
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Continue Reading Fasken’s Forecast for 2022 and Beyond: 2021’s Top 10 Trends in Canadian Competition, Marketing & Foreign Investment Law and what Businesses should expect in 2022

Surprisingly, the economy did not take centre stage in the recent federal government election. Rather, the limelight was on the government’s pandemic performance and the growing government intervention in all aspects of our lives.  Canadians, it seems, were not ready to turn the channel from their binge watching of the governments’ pandemic caretaking.  However, as the ratings begin to fall for COVID-19 programming, the new government and the public will likely soon turn their attention to more traditional table steaks, such as economic policy execution, particularly if inflation continues to rise, ravaging the disposable income of Canadians, and store shelves remain empty.  On the list of outstanding economic marketplace framework policy upgrades from the last parliamentary session are telecommunications and broadcasting (Bill C-10) and privacy (Bill C-11) reforms.  In the last session, parliament also took a small step towards competition policy modernization via the Standing Committee on Industry, Science and Technology hearings which informed a report recommending modest amendments to the Competition Act.  The previous substantive refinement to Canada’s competition law took place in 2009 following an in-depth study and report by the Competition Policy Review Panel which predated the major digital transformation of the economy. Last week, in a speech to the Canadian Bar Association’s competition law fall conference, the Commissioner of Competition made an impassioned plea for a comprehensive review of the Competition Act to modernize it for today’s reality and keep up with other jurisdictions.
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Continue Reading Post-Election Priorities – Will a Competition Policy Review make the Cut?

Canada’s Competition Bureau (the “Bureau”) recently signed a new competition enforcement agreement, the Multilateral Mutual Assistance and Cooperation Framework for Competition Authorities (“MMAC”), with competition authorities in the U.S., the U.K., Australia and New Zealand.  The MMAC is intended to improve the Bureau’s ability to cooperate with its counterparts in cross-border investigations, competition policy development, competition advocacy and outreach, inter-organizational training and on special projects.

The Bureau advances international enforcement cooperation and convergence in three general ways. The first is through bilateral and multilateral relationships.  The Bureau has developed an extensive network of cooperation relationships with competition agencies around the world. Many of these are based on bilateral and multilateral cooperation agreements (many in the form of a Memorandum of Understanding).   In addition to the MMAC, the Bureau currently has cooperation instruments relating to Canada’s competition and consumer protection laws with 15 foreign jurisdictions.  It is interesting to note that the MMAC is the first direct cooperation agreement with the U.K.’s Competition and Markets Authority.

Other legal tools, such as the U.S.-Canada Mutual Legal Assistance Treaty, have permitted the U.S. Department of Justice and the Bureau to conduct joint and parallel investigations into criminal price-fixing investigations.  So called ‘second generation MOUs’, along with reciprocal information gateway provisions (such as section 29 of the Competition Act, which deals with the treatment of confidential information in the Bureau’s possession), address the exchange of confidential information between Canada and other jurisdictions, such as Hong Kong and Japan.  The MMCA is a second generation MOU that will permit the reciprocal exchange of confidential information and cross-border evidence gathering between the signatories.
Continue Reading Competition Bureau Continues to Promote International Cooperation in Enforcement – Enters into a cooperation agreement with Five Eyes Counterparts