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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

Canada’s antitrust/competition, marketing and foreign investment laws continue to apply despite the global health and economic crisis arising from COVID-19. However, the enforcement of these laws are being significantly impacted by the COVID-19 response. These developments are fast moving and change almost daily.

Fasken’s Antitrust/Competition & Marketing Group continues to monitor these developments very closely.…

Earlier this month, John Pecman published a highly topical article in Competition Policy International on the dominance and durable market power that Big Tech companies are said to have in today’s economy and on the responses from international competition agencies titled “Dethroning the Digital Platform Champions”.

“One has to applaud the success of the so-called…

In recent years, competition/antitrust enforcers around the world, including Canada, have taken a marked interest in private equity deals.  As part of a broader global trend of tougher merger enforcement, private equity firms that have taken ownership positions (controlling or minority) in portfolio companies that are competitors have been subject to heightened scrutiny.  The litigation…