On May 18, 2011, the Competition Bureau released a new Fee and Service Standards Handbook for Written
Opinions with updated guidance on required
information, service times, and fees for binding written opinions.
Section 124.1 of Canada's Competition
Act, which was added in 2002, gives the
Commissioner the ability to issue a written opinion as to whether
particular provisions of the Act would apply to the facts described
in the application. These opinions are binding upon the
Commissioner provided that all material facts have been
The Bureau's new Handbook aims to assist applicants in
determining what material facts need to be disclosed. It provides
non-exhaustive lists of required information for some of the most
frequently reviewed provisions, including: s. 76 (price
maintenance), ss. 77 to 79 (other civil reviewable practices
including abuse of dominance), s. 90.1 (non-criminal agreements
with competitors that substantially lessen or prevent competition),
s. 45 (cartels, i.e., criminal competitor agreements), s.52
(misleading advertising), s. 52.1 (deceptive telemarketing), s. 53
(deceptive notice of winning a prize), and ss. 74.01 to 74.06
(civil deceptive marketing practices). The new Handbook reflects
some recent changes to the Act, such as the addition of s. 90.1 and
the corresponding "per se" nature of the cartel offence.
It also makes some changes to the information required for certain
provisions. For example, requests for written opinion for s. 45 and
ss. 77 to 79 now require the submission of "any relevant
agreement(s)", a requirement not stipulated in the previous
The new Handbook also outlines the "service standard"
periods, i.e., the timeframes within which the Competition Bureau
attempts to provide the requested opinions, which vary depending on
the subject matter and the complexity of the issues raised in the
application. The Bureau will classify the application as either
"complex" or "non-complex" with 5 business days
(of receipt of sufficient information to make such a
determination). As in the previous Handbook, a written opinion for
the more legally complicated sections dealing with competitor
agreements, bid-rigging, or abuse of dominance will typically be
processed within 6 weeks, but may take up to 10 weeks if the
application is classified as "complex". The new
guidelines also clarify when a "complex" designation will
be assigned: submissions that are "not straightforward"
may be deemed complex, and if the applicability of more than one
provision is being considered, the Handbook clarifies that
"the longest service standard period will apply".
Significantly, written opinions for provisions in Part IX of the
Act (dealing with merger notification questions), which previously
enjoyed a shorter service standard period (2 weeks for non-complex,
4 weeks for complex), now fall under the general service standards
(4 weeks for non-complex; 8 weeks for complex). Service standards
will be paused if at any time if the Bureau requests more
information from the applicant.
Finally, the Handbook updates the fee schedule for written
opinions. The general pricing structure has not changed: an opinion
for ss. 45 to 49, s. 79, or s. 90.1 will cost $15,000, the
"fair business practices" provisions cost $1,000, and all
other provisions cost $5,000, plus applicable tax (e.g., HST where
adopted – taxes vary by province).
See the press release for the new Handbook here. For more information on written
opinions, please contact a member of the Stikeman Elliott
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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