Cartels & Other Competition Criminal Matters

The recent Kobe Mohr v. National Hockey League[1] decision of the Federal Court (the “Decision”) provides important jurisprudential guidance on the application of sections 45 and 48 of the Competition Act (the “Act”).  These provisions prohibit naked anti-competitive conspiracies and conspiracies relating participation in professional sports respectively.

Continue Reading Federal Court Decision Clarifies Scope of Competition Act Conspiracy Provisions

As noted in our prior blog post titled “New Competitor Collaboration Guidelines”, the updated Competitor Collaboration Guidelines (the “CCGs”) issued earlier this month include a new hypothetical example of an illegal “hub and spoke” conspiracy among a mid-stream distributor and the retailers selling its products. As discussed in more detail below,

Non-compete clauses are included in virtually all purchase and sale agreements. They are designed to ensure that purchasers realize the full value of the acquired business by, for example, prohibiting competition from vendors within a defined area for a certain amount of time.[1] There is no question that such clauses are valuable to purchasers and essential in the mergers and acquisition context.

The Canadian Competition Bureau (the “Bureau”) has long recognized that non-compete clauses “can serve legitimate purposes”. However, the Bureau’s approach to non-compete clauses has been revised in its updated Competitor Collaboration Guidelines (the “CCGs”), which were issued on May 6, 2021 – see our prior blog post titled “New Competitor Collaboration Guidelines”. Significantly, as discussed in more detail below, the Bureau has signalled that it may consider such clauses under the criminal cartel provisions in the Competition Act (the “Act”) where they, for example, amount to a market allocation agreement or there is evidence that they are nothing more than a “sham”.
Continue Reading Non-Compete Clauses – So What’s the Risk?

On May 6, 2021, the Competition Bureau (the “Bureau”) released its new (and long-awaited)  competitor collaboration guidelines (the “New CCGs”). This is the first update to these guidelines since the previous version was published by the Bureau over a decade ago, in 2009 (the “2009 CCGs”).

The New CCGs

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 changed every aspect of how 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 also had to respond to the challenges posed by the pandemic.

Below we discuss ten key themes seen in the competition, marketing and foreign investment law space this year, and discuss what the year ahead has in store.
Continue Reading What 2020 tells us about 2021 and beyond: Fasken’s Year-End Review of the Top 10 Trends in Canadian Competition, Marketing & Foreign Investment Law

The Canadian Competition Bureau (the “Bureau”) issued much welcomed guidance on Friday to confirm what many have said to date, namely that no-poaching,[1] wage-fixing[2] and other buy-side agreements fall outside the scope of the criminal conspiracy provision (section 45) of the Competition Act (the “Act”). This guidance comes in

The COVID-19 pandemic has impacted just about every aspect of our personal and professional lives. From where we work and shop to how we stay in touch with family, friends and colleagues – nothing is the same as it was even just a couple of months ago!

M&A practices are also changing as businesses and

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.

This article considers the potential for changes in the treatment of vertical agreements under South African competition law as a result of recent amendments to the Competition Act, as well as current policy views within the law-makers and regulators.

Section 5(1) of the South African Competition Act prohibits vertical agreements that substantially prevent or lessen

Joint ventures are generally only of interest to competition authorities when they trigger merger notification obligations, or are otherwise used as a platform for collusive or anticompetitive behavior.

Recently, the South African competition authorities’ interest has been peeked in joint ventures that have purportedly been used as a platform for cartel activity, and a number