On April 1, 2021, the Government of Canada announced two important updates relating to merger filing fees: (i) a decreased merger filing fee ($74,905.57), and (ii) a new Service Fees Remission Policy.

Decreased Merger Filing Fee for 2021

Effective immediately, the Competition Bureau’s (the “Bureau”) filing fee for merger reviews has decreased from $75,055.68 to $74,905.57.

The Competition Act requires parties to certain types of transactions that exceed applicable thresholds notify the Bureau. (See our prior blog post – 2021 Merger Review Thresholds.) The notifying parties are required to pay a filing fee in respect of such pre-merger notification and/or request for an advance ruling certificate (“ARC”).

Pursuant to the Service Fees Act, the Bureau’s merger review filing fee is adjusted annually based on the Consumer Price Index for Canada. Accordingly, the Bureau’s merger filing fee generally increases each year. Due to Canada’s economic contraction following from extensive restrictions on economic activity imposed by governments which were intended to slow the spread of COVID-19, the adjusted fee is slightly lower this year than it was last year, which is exceptional. If the Canadian economy improves, we can expect the merger filing fee to increase in 2022.

New Service Fees Remission Policy

Effective immediately, Innovation, Science and Economic Development Canada (“ISED”)[1] has issued a Service Fees Remission Policy which applies to filing fees for pre-merger notifications and/or ARC requests. Under this new policy, in certain circumstances, the Bureau will remit (i.e. refund/return) a portion of the filing fee paid when a service standard is not met.

The Bureau’s service standards for pre-merger notifications and ARC requests are set out in the table below.

Service or Regulatory Process Service Standard (calendar days) Commencement of Service Standard[2]
Non-complex 14 days

The day on which sufficient information has been received by the Commissioner of Competition (the “Commissioner”) to assign complexity.

Generally, complexity is assigned within a few days of submitting the pre-merger notification and/or ARC request.


45 days

(except where a SIR is issued, in which case it shall be 30 days)

The day on which sufficient information has been received by the Commissioner to assign complexity; or, where a supplemental information request (“SIR”) has been issued, the day on which the information requested in the SIR has been received by the Commissioner from all SIR recipients.

The amount of the remissions for pre-merger notifications and ARC requests are contained in the Program Annex, and set out below.

  • Non-Complex Transactions:
    • 25% of the filing fee will be remitted if the service standard was missed by 1 – 7 days.
    • 50% of the filing fee will be remitted if the service standard was missed by 8 days or more.
  • Complex Transactions where no SIR is issued:
    • 10% of the filing fee will be remitted if the service standard was missed by 1 – 23 days.
    • 25% of the filing fee will be remitted if the service standard was missed by 24 days or more.
  • Complex Transactions where a SIR is issued:
    • 1% of the filing fee will be remitted if the service standard was missed by 1 – 15 days.
    • 5% of the filing fee will be remitted if the service standard was missed by 16 days or more.

A party will not be eligible for a filing fee remission if the service standard was missed due to any of the following occurring before the expiration of a service standard:

  • an unforeseeable event;
  • a planned or unplanned power outage;
  • the merger transaction is under investigation pursuant to another provision of the Competition Act
  • the merger transaction is under investigation by another Canadian or foreign authority and the Bureau is cooperating with said authority with respect to the transaction;
  • the Commission and the parties entered into an agreement with respect to the timing of the service standard; or
  • the Bureau is reviewing multiple merger transactions involving one or more of the same parties.

Although the Bureau has a good record for meeting its service standards, the Service Fees Remission Policy is a welcome development because it further incentivizes the Bureau to improve its record in this regard.

[1] The Competition Bureau is a federal institution that is part of the Innovation, Science and Economic Development Canada portfolio.

[2] In the case of an unsolicited bid under subsection 114(3) of the Competition Act, the service standard will commence when all parties other than the target corporation have complied with the applicable requirements.

Canada’s Competition Bureau (the “Bureau”) has joined an international multilateral working group that will be focusing on the analysis of pharmaceutical mergers. Initiated by the U.S. Federal Trade Commission, the working group also includes the Antitrust Division of the U.S. Department of Justice, Offices of State Attorneys General, the U.K. Competition and Markets Authority (“CMA”) and the European Commission Directorate General for Competition (“European Commission”).  According to the Bureau, “(t)he goal of the initiative is to identify concrete steps to review and update the analysis of pharmaceutical mergers, which are often subject to review in multiple jurisdictions.” The organizer of the international working group, Acting FTC Chair Rebecca Slaughter, used stronger language, noting that “amid skyrocketing drug prices and ongoing concerns about anticompetitive conduct in the industry, it is imperative that we rethink our approach toward pharmaceutical merger review.” Similarly, the European Commission notes that the working group “will bring enhanced scrutiny and more detailed analysis of these kinds of mergers in the future, for the benefit of consumers.”

The FTC elaborated on the specific questions that the working group will consider, namely:

  • How can current theories of harm be expanded and refreshed?
  • What is the full range of a pharmaceutical merger’s effects on innovation?
  • In merger review, how should [antitrust/competition agencies] consider pharmaceutical conduct such as price fixing, reverse payments, and other regulatory abuses?
  • What evidence would be needed to challenge a transaction based on any new or expanded theories of harm?
  • What types of remedies would work in the cases to which those theories are applied?
  • What have [antitrust/competition agencies] learned about the scope of assets and characteristics of firms that make successful divestiture buyers?

Acting FTC Chair Slaughter is reported to be open to reconsidering completed pharmaceutical mergers based on the international working group’s findings. Acting FTC Chair Slaughter has been openly critical of certain pharmaceutical mergers in the past.  Accordingly, her role in spearheading this international working group is not overly surprising.

No expected timetable has been reported on in regards to the working group’s work product.


  1. The promotion of competition and innovation in Canada’s health sector, including the pharmaceutical industry, is a strategic priority for the Bureau. Accordingly, the Bureau’s participation in this working group is a reminder of this strategic priority. What is unique about this initiative, however, is its focus on a particular industry and the Bureau’s (and working group’s) suggestion that different rules and analytical frameworks may need to be applied to the pharmaceutical industry.
  1. Each of the jurisdictions participating in this working group has its own individual laws and enforcement framework. The Bureau will have particular challenges trying to apply different rules to specific industries in Canada given that the Bureau’s framework for reviewing mergers is largely statutory with well established case law. For example, the consideration of non-merger related factors, such as regulatory abuses, would be a significant departure from the Bureau’s prescribed framework for analyzing mergers. Further, unlike in the US where there is no limitation period to review consummated mergers, Canada has a one-year post-closing limitation period after which time a completed merger cannot be challenged.
  1. Parties contemplating mergers in the pharmaceutical industry in Canada should plan early and anticipate the possibility of a lengthy and rigorous merger review, including in relation to potential divestiture buyers where necessary. Given the stated questions that the working group is considering, the merger review analysis may not only be based on traditional pharma related overlap analyses but also on new theories of harm and other considerations.

If you have questions about the Competition Act or any aspect of this blog post, you can reach out to any member of Fasken’s Competition, Marketing & Foreign Investment group. Our group has significant experience advising clients on all aspects of Canadian competition law.

The information and guidance provided in this blog post does not constitute legal advice and should not be relied on as such. If legal advice is required, please contact a member Fasken’s Competition, Marketing & Foreign Investment group.

Numerous countries around the world are currently reviewing their competition laws and policies. This review is focussed on both the purpose of competition law generally and whether existing laws are “fit for purpose”, particularly in the context of today’s rapidly changing and highly disruptive digital economy. The debate around these issues has been fierce to say the least, with some arguing that no changes are needed and others, such as U.S. Senator Amy Klobuchar, arguing that U.S. antitrust laws need to be completely overhauled in order to better protect consumers.

Canada is also considering possible amendments to the Canadian Competition Act. In fact, on February 23, 2021, the House of Commons Standing Committee on Industry, Science and Technology passed a resolution agreeing to devote “[a] minimum of four meetings to a study on competitiveness in Canada including … reform of the Competition Act and any other matter relating to competition”. In this regard, according to Member of Parliament Nathanial Erskine-Smith, there is “recognition” across political parties that there are “deficiencies” in the Act and that the Commissioner of Competition “does not have the tools he needs”. MP Erskine-Smith is of the view that, “[a]s the United States moves forward more seriously with a really strong antitrust lens … we need to update our laws and do the same” – it would be a “mistake” for Canada not to “seize this moment”. The Competition Bureau has indicated that it “supports any measure that ensures Canada is equipped with modern legislation and tools that are appropriate for the digital age”.

While no one can quarrel with the need to review competition laws to ensure that they are “fit for purpose”, any such review needs to be fully informed and take into account all relevant information – something that may not be happening today. For example, while many of the issues being discussed in the context of the digital economy are based on a relatively small handful of economics-related papers, Professor Daniel Sokol noted the following during a recent Canadian Bar Association teleconference titled “Economic Issues Involving Platforms, Privacy and the Digital Economy”: (a) that the vast majority of the more than 200 empirical online platform-related papers published from 2000 to 2019 by leading business journals covered other disciplines, such as finance, information systems, management and marketing; (b) that this empirical work looks very different than the economics-related work; and (c) that we need to better understand what the empirical literature tells us, particularly since most papers show pro-competitive results.

While Canada should be paying attention to what is happening elsewhere, it should not blindly follow other jurisdictions as it considers possible amendments to the Competition Act – particularly as it relates to the types of amendments being proposed by Senator Klobuchar, as many of the proposed changes could be harmful to competition, innovation and the economy. Rather, any such amendments should be carefully considered and subject to a detailed policy debate, which includes lawyers, economists, academics, Bureau officials, policy-makers and other relevant stakeholders. Moreover, the discussion should be informed by a thorough review of all relevant empirical literature – not just a small handful of economics-based papers that provide a one-sided perspective. Failing to proceed in this fashion could result in a “cure” that is worse than the perceived “problem” by, for example, creating a regime that unnecessarily limits or prevents pro-competitive or efficiency-enhancing conduct that could otherwise spur innovation – something that, in my view, needs to be avoided at all costs!

If you have questions about the Competition Act or any aspect of this blog post, you can reach out to any member of Fasken’s Competition, Marketing & Foreign Investment group. Our group has significant experience advising clients on all aspects of Canadian competition law.

The information and guidance provided in this blog post does not constitute legal advice and should not be relied on as such. If legal advice is required, please contact a member Fasken’s Competition, Marketing & Foreign Investment group.

On March 24, 2021, the Minister of Innovation, Science and Industry (the “Minister”) announced updates to the Guidelines on the National Security Review of Investments (the “Guidelines”) issued under the Investment Canada Act (the “ICA”).

This first update since the Guidelines were issued on December 21, 2016 appears to respond to widely expressed concerns about the sanctity of personal information, vulnerability of Canadian intellectual property, and the growing importance of things like critical minerals to Canada’s geopolitical positioning and the basic health and safety of citizens in a post-pandemic world. Additionally, areas of technology broadly understood to be of concern to the Government of Canada (the “Government”) have been expressly listed, with the only potential surprise being “Advanced Ocean Technologies.”


Separate and distinct from the “net benefit to Canada” economic impact assessment, the ICA provides for a national security review that gives the Government the authority to review any acquisition (or establishment) of all or part of a Canadian business, that, in its opinion, could be injurious to Canada’s national security.

In 2016, the Minister issued Guidelines as a way to provide foreign investors with a clearer picture as to the circumstances under which the Government of Canada may initiate a national security review. For more information on the introduction of the Guidelines in 2016, see our post, Investment Canada Issues National Security Review Guidelines.

What’s new

The Guidelines previously contained specific factors the Government would consider during the national security review process. The updated Guidelines expand that list of factors and provide additional clarity with respect to some of the pre-existing factors, including the potential effects of the investment on:

  • Canada’s defence capabilities and interests – this consideration now includes, but is not limited to, the defence industrial base and defence establishments.
  • Transfer of sensitive technology or know-how outside of Canada – this factor has been updated to provide additional clarity on what may be considered sensitive technology, including those developed in the following fields:
    • Advanced Materials and Manufacturing
    • Advanced Ocean Technologies
    • Advanced Sensing and Surveillance
    • Advanced Weapons
    • Aerospace
    • Artificial Intelligence
    • Biotechnology
    • Energy Generation, Storage and Transmission
    • Medical Technology
    • Neurotechnology and Human-Machine Integration
    • Next Generation Computing and Digital Infrastructure
    • Position, Navigation and Timing
    • Quantum Science
    • Robotics and Autonomous Systems
    • Space Technology
  • Critical minerals – the list of factors now includes consideration of the impact of an investment on critical minerals and critical mineral supply chains. For more information on which minerals are considered critical in Canada, see our recent post, Newly Critical: Copper, Helium and More – Canada’s List of Critical Minerals has Expanded for 2021.
  • Involving or facilitating the activities of corrupt foreign officials – corrupt foreign officials have been added to the examples of illicit actors whose activities may be considered.
  • Exploitation of sensitive personal data – the list adds consideration of the ability to enable access to sensitive personal data, exploitation of which could harm Canadian national security. Helpfully, the Guidelines provide a non-exhaustive list of the types of personal data that may be considered sensitive: (a) personally identifiable health or genetic data, (b) biometric data, (c) financial data, (d) communications data, (e) geolocation data, and (f) personal data concerning government officials, including members of the military or intelligence community. These are not new concerns to the Government, but the express listing represents a welcome move towards clarity that tends to explain the “why” behind past general expressions of federal concern.

Note that the Guidelines provide a non-exhaustive list of factors that may be taken into account during a national security review. Investments that do not possess the listed characteristics may nevertheless present national security concerns. Conversely, investments that possess some of the above-listed characteristics will not necessarily be viewed by the Government as injurious to Canada’s national security. Each of the factors must be set within the current bilateral, geopolitical, and domestic political contexts in order to produce a more fully-developed picture of the likelihood of an investment’s ultimate approval by the Government.

What Stays the Same

Consistent with the Government’s April 2020 Policy Statement on Foreign Investment Review and COVID-19, the updated Guidelines now provide that the Government will subject all foreign investments by state-owned investors, or private investors assessed as being closely tied to or subject to direction from foreign governments, to enhanced scrutiny under the ICA, regardless of the investment’s value. Enhanced scrutiny of foreign direct investments, both controlling and non-controlling, in Canadian businesses, has been the Government’s policy for some time now.

What’s Next

While these revised National Security Guidelines do provide a new level of transparency to the investment community concerning what types of transactions may attract national security scrutiny, they do not address the need for more openness and transparency during actual national security reviews in the context of specific transactions.

Actions to mitigate perceived security issues should always be something to be considered. In the past, the Government has shown reluctance to engage in mitigation discussions, appearing to prefer a binary “go / no go” approach. Hindering the ability to determine whether mitigation is even a possibility is a certain lack of transparency or openness by the government as to the exact nature of its security concerns with respect to a specific transaction.  Acknowledging that mitigation discussions are inherently difficult given that national security matters are involved, something more needs to be done to ensure that otherwise beneficial transactions are not blocked simply because the parties to the deal have not been given a full and fair opportunity to address the government’s security concerns and to offer possible mitigation options to address those concerns. A published list of specific areas of federal concern will make it more difficult for the Government to keep its concerns general and instead, will invite a healthy debate about specific problems with a deal — and specific solutions thereto. This is a step in the right direction in the attraction of the foreign capital crucial to Canada’s economic recovery from COVID-19.


Double Ticketing

Canadian competition law prohibits businesses putting two prices on one product and charging the higher of the two prices.

This concept of double ticketing was first introduced into Canadian law in 1975 to address stores listing two different prices for a single item; however, we are now seeing the concept being extended to today’s digital marketplace.

This trend commenced with the recent class action against Airbnb (2019 FC 1563) invoking section 54 of the Competition Act in the context of Airbnb showing a user one price for accommodation on the search results page, and a second, higher price that includes service fees on the listing page, then charging the customer for the higher price upon booking. This trend has continued with the B.C. Supreme Court recently certifying a class proceeding against an airline relating to its practice of charging passengers $25 to check their first bag (2021 BCSC 12).

Airline Class Action

The claim against the airline arises from inconsistent language in both its domestic and international tariffs with respect to whether or not passengers would be charged $25 to check their first piece of luggage. Both tariffs had provisions indicating that the first piece of checked luggage would be free of charge, and provisions indicating that there would be a fee on the first piece of luggage.

The plaintiff’s primary position was that because tariffs are published pursuant to government regulations, and form part of the contract with the passenger, they are continuously expressed to passengers.  The airline’s position was that because passengers can buy an airline ticket without ever looking at the tariff, the free check bag price was not clearly expressed, as required by the Competition Act, and that the plaintiff failed to plead that the two prices were expressed at the time of supply.

Initially, the Court found that the plaintiff had not pled that the two tickets were expressed at the time of travel, or even that they were expressed at the same time and permitted the plaintiff to amend its notice of civil claim to plead the temporal requirement. The defendants conceded that the plaintiff had adequately pled claims for breach of contract and unjust enrichment.

The Court subsequently certified the Competition Act claim (2021 BCSC 351), finding that the plaintiff’s proposed amendments addressed the issues it had previously raised with respect to timing.  In doing so, the Court rejected the defendants’ opposition to the amendments on the basis that the submissions effectively amounted to a request for the court to reconsider determinations it had already made on the basis of new arguments that were not made at the certification hearing.

The Court removed from the class individuals who flew on flights where the airline was not the entity that received the baggage fees.

The airline argued that commonality could not be established because the terms of its contracts with passengers differ depending on the circumstances surrounding each class member at the time of purchase. The Court rejected this argument and accepted the claim as a common issue. However, the court ordered a common issues trial on the basis that the tariffs were ambiguous insofar as they contain terms that contradict one another with respect to baggage fees, and thus needed to be properly construed.

The airline argued that because the determination of whether there was a juristic reason for enrichment would require an analysis of each individual contract, there could be no common issues in unjust enrichment. The Court rejected this argument, stating that the answer to this question will not differ between class members. The contract will either provide a juristic reason or not.

The Court found that the large number of claims, each for a small amount, made a class proceeding the only practical means of providing meaningful access to justice to the large number of individuals who may have a claim.

The airline raised the issue of double recovery due to a similar class proceeding in Saskatchewan with respect to baggage fees charged by it and another airline. Because that proceeding has not been certified, the Court found that any concerns about double recovery are mere speculation.

The Court found that the proposed representative plaintiff was suitable as she was subject to a contract of carriage with the airline during the class period and paid baggage fees for her first checked bag.

The Court therefore certified the plaintiff’s claims in relation to breach of contract and unjust enrichment and granted leave to the plaintiff to amend its notice of civil claim to plead the temporal requirement.

Unchartered Territory

There may be a growing trend of certifying cases applying double ticketing provisions to online sales, but it does not mean that these claims will succeed at trial. Indeed, in both the Airbnb case and the airline case, the courts expressed skepticism about the merits of the plaintiffs’ cases. Nonetheless, businesses putting two prices on a product or service to lure customers but then charging the higher price face potential class actions.

The Competition Bureau announced the 2021 transaction-size pre-merger notification threshold under the Competition Act is decreasing to C$93 million, effective February 13, 2021. Innovation, Science and Economic Development Canada also announced new, lower foreign investment review thresholds under the Investment Canada Act, effective January 1, 2021.

These thresholds are adjusted annually based on GDP formulas. As a consequence, they generally increase each year. This year’s decrease in merger review thresholds is a consequence of Canada’s economic contraction following from extensive restrictions on economic activity imposed by governments which were intended to slow the spread of COVID-19. If the economy recovers, it is likely these thresholds will increase in 2022.

Competition Act

In general terms, certain transactions that exceed prescribed thresholds under the Competition Act trigger a pre-merger notification filing requirement; such transactions cannot close until notice has been provided to the Commissioner of Competition (the “Commissioner”) and the statutory waiting period under the Competition Act has expired or has been terminated or waived by the Commissioner. Where both the “transaction-size” and “party-size” thresholds are exceeded, a transaction is considered “notifiable”. Continue Reading 2021 Merger Review Thresholds

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 use of long-term exclusive lease agreements by supermarkets in South Africa has been quite controversial over the last few years.  Unsurprisingly, the impact of long-term exclusive lease agreements on local competition was one of the six objectives to be investigated by the Grocery Retail Market Inquiry[1] (“GRMI”) which was established on 30 October 2015.

In the final report of the GRMI, which was published on 17 December 2019, it was recommended that the Competition Commission (“Commission”) must seek to secure voluntary compliance by the national supermarket chains of the recommendations made.  These recommendations included undertakings by supermarkets not to enforce exclusive provisions in certain instances, that new lease agreements may not contain exclusive provisions and that exclusive lease agreements must be phased out over a period of time. Continue Reading Reflecting on the phasing out of long-term exclusive lease provisions in South Africa

On Friday, the Foreign Investment Review Committee (“FIRC”) of the Canadian Bar Association’s (“CBA”) Competition Law Section met with representatives from the Investment Review Division (“IRD”), Innovation, Science and Economic Development Canada (“ISED”) and the Cultural Sector Investment Review (“CSIR”), Canadian Heritage. The meeting featured interesting and informative presentations from representatives from both the IRD and CSIR, followed by a Q&A. Outlined below are some of the highlights.

  1. Highlights from the IRD’s Presentation

(a) Net Benefit to Canada Review Threshold for UK Investors

The United Kingdom (“UK”), which has left the European Union (“EU”), and by extension the Canada-European Union Comprehensive Economic and Trade Agreement (“CETA”), is currently in a transition period which is set to end on December 31, 2020. During the transition period, UK investors have benefited from the net benefit to Canada review threshold available to trade agreement investors. As of January 1, 2021, investments into Canada by UK investors will be subject to the lower threshold for World Trade Organisation  (“WTO”) investors. Continue Reading Highlights from the Foreign Investment Review Committee’s Town Hall with the Investment Review Division and Cultural Sector Investment Review

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 response to significant interest from politicians and the legal and business communities regarding the treatment of these types of agreements in light of the position taken by the US Justice Department’s Antitrust Division and the Federal Trade Commission (outlined below).

Section 45 of the Act prohibits agreements between competitors to fix prices, allocate markets or limit the supply of a product. Such agreements are per se unlawful (i.e. they are deemed illegal without proof of anticompetitive effects). Violations may be subject to significant fines, imprisonment and private enforcement (including class actions).

Section 45 of the Act was amended in 2009 to establish a per se criminal offence for “naked” restraints on competition, namely, agreements between competitors to fix prices, allocate markets/customers, or restrict output.  These types of agreements were prohibited on a per se basis (without any need to assess competitive impact) because they are viewed as inherently anti-competitive, without any prospect of pro-competitive effects.  The former provision required a competitive effects analysis and expressly covered, among other things, agreements between competitors to prevent or lessen competition unduly in the “purchase” of a product.  The amended per se criminal conspiracy provision omits any reference to agreements relating to the purchase of products.

Coincident with the amendments to the criminal conspiracy provision, a civil anti-competitive agreements provision – section 90.1 – was added to the Act.  Section 90.1 applies to agreements between competitors that are resulting in, or are likely to result in, a substantial lessening or prevention of competition. The Commissioner of Competition (the “Commissioner”) can seek to enforce this provision by way of application to the Competition Tribunal (the “Tribunal”).  The remedy for a breach of section 90.1 is a prohibition order. Civil damages are only available for breach of such an order.  In contrast, breach of section 45 can result in criminal sanctions in the form of fines and/or imprisonment, as well as civil actions for damages, including class action lawsuits.

In the initial period following the 2009 amendments to the Act, it was generally understood that the amended criminal conspiracy provision had no application to buy-side agreements, which may have pro-competitive effects. For instance, competitors can enter into buying group arrangements in order to lower their input costs, which could translate into lower prices for their customers. Consistent with this, the Bureau’s Competitor Collaboration Guidelines issued in 2009, state that section 45 applies to the price for the supply of a product, not for the purchase of a product.

The US Perspective

The US Justice Department’s Antitrust Division and the Federal Trade Commission have issued guidance indicating that naked no-poaching or wage-fixing agreements that are unrelated or unnecessary to a larger legitimate collaboration between employers will be criminally investigated and prosecuted as hardcore cartel conduct.

The Canadian Perspective

The Bureau has clarified that no poach, wage-fixing or other buy-side agreements will not be subject to criminal sanction due to the specific language in Canada’s cartel laws. Section 45 of the Act only applies to supply-side agreements due to the removal of the word “purchase” from section 45 of the Act in 2009. The Bureau reached this decision based on legal advice from the Department of Justice and the Public Prosecution Service of Canada that the removal of “purchase” from section 45 limited application of the provision to supply-side agreements.

However, the Bureau has indicated that it may assess buy-side agreements such as no-poach and wage-fixing agreements under section 90.1 of the Act, which authorizes the Tribunal, on application by the Commissioner to make prohibition orders in connection with agreements between competitors (including employers) that substantially lessen or prevent competition. The Bureau noted that it intends to provide further guidance on the treatment of buy-side agreements under section 90.1 in forthcoming updates to its Competitor Collaboration Guidelines.

As noted above, unlike section 45, violations of section 90.1 cannot result in fines, imprisonment, private enforcement or damages awards.


[1] A “no-poach agreement” is an agreement with another employer(s) not to solicit another company’s employees.

[2] A “wage fixing agreement” is an agreement with another employer(s) to limit wages, salaries or other employee benefits.