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

On February 12, 2022, the federal government proposed, in the Canada Gazette, amendments to the National Security Review of Investments Regulations (the “Regulations”). The Regulations set out the timelines of the national security review process under the Investment Canada Act (the “Act”). If ratified, the proposed amendments would create a voluntary filing mechanism for investors that do not currently have a filing obligation under the Act, and would extend the initial national security review period from 45 days to 5 years for all investments by non-Canadians that do not make a filing. Investors who choose to submit a voluntary filing will, within 45 days from the certification date of their filing, know whether the Government of Canada intends to challenge their investment. The proposed amendments will benefit businesses contemplating an investment in Canada by creating an option to achieve regulatory certainty pre-implementation.

Continue Reading Canada Proposes to Permit Voluntary Filings under National Security Provisions of its Investment Canada Act

As discussed in more detail in our prior blog post titled “Competition Bureau Recommendations to Strengthen the Competition Act”, in a continuing effort to ensure that Canada has an effective and impactful competition law framework, Senator Howard Wetston invited interested stakeholders to participate in a consultation to promote additional dialogue on the path forward for Canadian competition law. As part of this consultation, Senator Wetston received comments from more than 25 stakeholders, including a detailed submission from the Competition Bureau (the “Bureau”).

Continue Reading Competition Bureau Recommendations Regarding Merger Review in Canada

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

On February 2nd, 2022, the Director of Investments issued his annual report on the administration of the Investment Canada Act (“ICA”) for the fiscal year commencing April 1, 2020 and ending March 31, 2021. The Annual Report provides insight on key trends relating to foreign investment and national security reviews in Canada.

During the period covered by the Annual Report, a total of 826 filings were certified under the ICA, representing a 20% decrease from the 1,032 filings made in the previous year. Most notably, the number of applications for review (required in the case of high-value foreign acquisitions) dropped by 67% over the prior period.

Continue Reading Investment Canada Act: 2020/21 Annual Report

Canada’s Minister of Innovation, Science and Economic Development (“ISED”), Francois-Philippe Champagne, made two important announcements on Monday morning in an exclusive interview with Toronto Star business reporter, Christine Dobby, and in a subsequent press release: (1) the Government of Canada (the “Government”) will engage in a broad review of the Competition Act (the “Act”) with a view to promoting dynamic and fair markets, and (2) the $93 million transaction-size threshold for pre-merger notification will not be increased this year – an unusual development following a year of GDP growth.

Continue Reading Upcoming Review of the Competition Act and Other Developments

Last week, former Commissioner of Competition and Fasken Senior Business Advisor John Pecman published a highly topical article in the Financial Post outlining why knee-jerk antitrust reform may worsen inflation. Yesterday morning, the Minister of Innovation, Science and Economic Development Canada, Francois-Philippe Champagne, announced that the Government of Canada will engage in a broad review of the Competition Act (the “Act”) with a view to promoting dynamic and fair markets. This announcement comes in response to growing calls for reform to Canada’s competition laws to account for the market power of large companies, particularly in the digital space. Reform proposals range from practical and constructive, to bold and potentially harmful.

In his article in the Financial Post, John explains that many of the proposed reform proposals would bring back outdated views about big business and may well result in reduced economic efficiency and harm to consumers. Further, he discusses why one particular reform proposal would be inadvisable – a ban on self-preferencing. John explains that a ban on self-preferencing either generally, or specifically by large digital platforms, may cause less competition, less innovation, and higher prices. He notes that the Act already permits competition regulators to challenge and stop practices such as self-preferencing by entities with market power if they are likely to result in a substantial lessening or prevention of competition. Until the current laws are shown to be inadequate, John suggests it is premature to seek legislative changes.

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

Under the Investment Canada Act (the “ICA”), the direct acquisition of control of a Canadian business by a non-Canadian may be subject to a pre-closing review and approval process (a “Net Benefit Review”) if a specified monetary threshold is exceeded. When officially published in the February Canada Gazette, the following thresholds for Net Benefit Reviews will be effective from January 1, 2022:

Continue Reading Investment Canada Act: New Monetary Thresholds for 2022