Competition Litigation

The rise of Artificial Intelligence (AI) is transforming businesses around the world, offering unprecedented opportunities for innovation and economic prosperity. However, it also presents unique challenges for competition authorities tasked with ensuring fair and efficient markets. In response, the competition authorities such as the Canadian Competition Bureau, the UK Competition and Market Authority (CMA), the European Commission – DG Competition (EC) and the U.S. Federal Trade Commission (FTC) have been actively engaging in consultations and research to understand the implications of AI on competition policy. This blog highlights some of these agencies’ efforts to adapt competition policy to evolving digital markets as well as noting some of the key legal antitrust risks for business.Continue Reading Competition Authorities shining the light on AI

On August 17, 2022, the Federal Court of Appeal (the “FCA”) dismissed the appeal by Kobe Mohr in Mohr v. National Hockey League. In summary, the FCA found that the decision reached by the Federal Court was correct in its conclusion, and that neither s. 48(1) nor s. 45(1) of the Competition Act (the “Act”) apply to the conduct at issue.
Continue Reading Federal Court of Appeal Confirms Scope of Competition Act Conspiracy Provisions

On June 23, 2022, Bill C-19, also known as the Budget Implementation Act, 2022, No.1 (“BIA”), received royal assent. The BIA was tabled in Parliament on April 7, 2022 and included significant proposed amendments to the Competition Act (the “Act”).
Continue Reading Significant Amendments to Canada’s Competition Act Are Now Law: What You Need to Know

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.
Continue Reading Significant Amendments to Competition Act Coming Soon

Competition class actions are often sparked by regulatory or criminal investigations, especially when there are admissions of anti-competitive conduct or guilty pleas.

In the recent Jensen decision, the Federal Court of Canada considered when the mere existence of an investigation can support certification, and what is required for a foreign investigation to satisfy the “some basis in fact” standard.Continue Reading Can Foreign Investigations Establish Some Basis in Fact of an Alleged Conspiracy?

As discussed in our prior blog post titled “Competition Tribunal Dismisses Request for Interim Interim Order”, the Competition Tribunal (the “Tribunal”) previously found that it does not have the power to grant “interim interim” relief pending its decision for “interim” relief. While the Tribunal’s decision was initially upheld following an emergency motion before a single judge of the Federal Court of Appeal (the “FCA”), the jurisdictional question before it was recently overturned following a hearing before a full panel of FCA judges. In particular, this panel of judges confirmed that the Tribunal has the jurisdiction to temporarily block mergers (i.e., grant “interim interim”) where the Commissioner meets certain evidentiary and legal burdens.

This blog post includes some relevant background information, discusses the FCA’s recent decision and summarizes the implications for businesses going forward.Continue Reading Canada’s Competition Tribunal Has Jurisdiction to Grant “Interim Interim” Relief in the Contested Merger Context

Governments and competition agencies around the world, including those in Canada, the United States and Europe, are reviewing their competition policies to assess whether they are capable of addressing novel and complex issues arising in today’s fast-paced and ever-changing digital economy. These issues arise because the digital economy, unlike traditional markets, is often charactered by, among other things, platform-based business models, multi-sided markets, network effects, economies of scale, rapid technological change and disruptive innovation.
Continue Reading Competition Bureau Recommendations to Strengthen the Competition Act: Introduction

Since the Supreme Court of Canada’s 2013 trilogy of decisions in Pro-SysSun-Rype and Infineon, and its 2019 decision in Godfrey, plaintiffs have had considerable success certifying private antitrust/competition class actions in Canada.  It is thus noteworthy that a number of recent decisions suggest a growing judicial willingness to limit or dismiss proposed competition class actions at the certification stage or before certification through preliminary motions.
Continue Reading Competition Class Actions in Canada: Takeaways from 2021 and Trends for 2022

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.
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

On August 16, 2021, the Competition Tribunal (the “Tribunal”) dismissed the Commissioner of Competition’s (the “Commissioner”) request for interim relief in connection with the recently-completed merger of SECURE Energy Services Inc. (“Secure”) and Tervita Corporation (“Tevita”) (the “Transaction”). In summary, in its decision made public