Canada: Nine Key Developments In Enforcement Of Non-Criminal Provisions Of The Competition Act


At the recent annual conference of the Canadian Bar Association's Competition Law Section, representatives of the Competition Bureau presented their priorities for the coming year and discussed recent developments. Distilled below are the nine key developments in the enforcement of the non-criminal aspects of Canada's Competition Act (Act) and their implications for businesses in Canada and abroad.

General matters

  1. The age of "appropriately aggressive enforcement" is here. The commissioner of competition (Commissioner) announced that the Bureau has moved from a period of digesting the significant amendments to the Act made in 2009, to a phase of bringing cases based on the new law, which she called "appropriately aggressive enforcement." Throughout the last year, the Bureau has, among other things, challenged two mergers, pursued several abuse of dominance cases, challenged Visa and MasterCard's pricing practices, and brought several actions for misleading advertising, one of which resulted in a significant settlement with Bell Canada for the maximum $10 million penalty.
  2. If you sign a consent agreement, follow it. The Commissioner demonstrated by her actions against Beiersdorf Canada Inc., maker of Nivea products, that parties who sign consent agreements to resolve cases must ensure they follow the terms of these agreements. The Commissioner announced a settlement with Beiersdorf on September 7, 2011, regarding misleading claims made with respect to certain Nivea products; on September 22, 2011, the Commissioner announced that she had required Beiersdorf to cease making inaccurate claims about the terms of the settlement. At the conference, the Commissioner announced that the Bureau is pursuing contempt charges against another party for allegedly breaching the terms of a consent order. Breaching an order is a criminal offence under the Act; upon summary conviction there is a maximum $25,000 fine and/or up to one year's imprisonment, and upon conviction on indictment, the fine is in the discretion of the court and/or up to five years' imprisonment.
  3. Consumer protection is a high priority. The Commissioner has stated that a renewed focus on enforcement will ensure Canadians understand that "we will fulfill our responsibility fearlessly to promote and protect competition," and "build confidence in the marketplace and demonstrate the relevance of the Bureau's work to Canadians in their everyday lives."1 A common theme among the many cases brought to date by Commissioner Aitken is that most will have a direct impact on the wallets of Canadian consumers: abuse of dominance cases against The Canadian Real Estate Association and Toronto Real Estate Board designed to lift restrictions that prevented lower-cost methods of selling homes; misleading representation cases against Rogers Chatr, Bell Canada, and Beiersdorf; challenges to the fees imposed by Visa and MasterCard; and a merger challenge against Air Canada and United Continental alleging that it will lead to higher fares for numerous transborder routes.


  1. Changes to the Merger Enforcement Guidelines will provide greater flexibility but less certainty. The Bureau concluded a year-long review process by releasing the final version of its revised Merger Enforcement Guidelines on the first day of the conference. The MEGs set out the Bureau's analytical framework for reviewing mergers. Having issued two consultation drafts, the final version of the MEGs contained few surprises.2 The primary change relative to the 2004 version of the MEGs is the Bureau's decision that defining relevant product and geographic markets is merely one analytical tool of many, and it need not be undertaken in every case. This will afford both the Bureau and merging parties greater flexibility in crafting arguments about the merits of potential transactions. The other major changes are that the Bureau has consolidated the merger-related guidance it previously provided in other documents into the MEGs (such as efficiencies), providing a "one-stop shop" document for merger guidance. The final version of the revised MEGs also clarifies that its treatment of efficiencies takes precedence over the Bureau's 2009 Bulletin on Efficiencies in Merger Review. The revised MEGs further provide greater detail on the Bureau's approach to transactions involving minority interests and interlocking directorates, to vertical mergers and to monopsony power.
  2. Smaller transactions will not escape scrutiny. The Bureau reiterated its previous guidance that it has increased its monitoring of smaller, non-notifiable transactions that may raise competition law issues, and confirmed that one staff member has been tasked with monitoring media and transaction databases for such deals. Traditionally, the Bureau only reviewed a handful of transactions every year that fell below the threshold for pre-merger notification. (I.e., the target has assets in Canada or revenues from sales in or from Canada of more than $73 million and the parties to the transaction, together with their affiliates, have assets in Canada, or generate revenues from sales in, from or into Canada from those assets of more than $400 million.) In January 2011, the Bureau challenged a non-notifiable transaction and sought a possible remedy of dissolution, meaning that, if successful, the buyers may need to return the funds and the entire deal could be undone. Parties to transactions below the notification threshold should ensure that they consider competition issues early in their transaction planning process in order to provide time to deal with the Bureau if the transaction is likely to give rise to competition issues.
  3. Transparency will be enhanced. Since the 2009 amendments, the Bureau has introduced a number of guidance documents providing its view on how the new provisions of the Act will be applied and what procedures will be followed in enforcing them. Bureau officials indicated they will continue to refine their guidance documents as they gain more experience with the new provisions. This includes expected updates to the Merger Review Process Guidelines and the Remedies Bulletin, and the development of consent agreement templates. The Bureau also intends to increase the frequency of its "position statements," which are explanations of the approach used in particular transactions. Bureau officials indicated they will endeavour to release a position statement for each merger that has been classified as "complex." Finally, officials announced their intention to begin publishing a monthly "mergers register" that will include, for each transaction the Mergers Branch reviews, the names of the parties, the industry involved, and the outcome of the review. In the overwhelming majority of cases, the Bureau will already have had to contact market participants (i.e., customers and suppliers of the parties) as part of its merger review, but in cases where no market contacts have been made, the mergers register could represent the initial public disclosure of a merger review. Parties in these situations may want to develop appropriate communications plans to manage the disclosure process.

Misleading advertising/deceptive marketing practices

  1. Misleading advertising will not be tolerated. The Bureau has increased its enforcement of the misleading advertising and deceptive marketing practices provisions of the Act, and intends to continue to do so. Misleading representation cases were brought against Rogers Chatr, Bell Canada, and Beiersdorf, with the Commissioner seeking significant remedies in each case, including maximum administrative monetary penalties. The Bureau now considers that enforcement in this area is as much a priority as are actions against cartels, abuse of dominance or anti-competitive mergers.

Reviewable practices

  1. Pending cases will clarify important new provisions. The price maintenance provisions of the Act were changed in 2009, removing the criminal sanctions and requiring that the conduct has had, is having or is likely to have an "adverse effect on competition" in a market. The Commissioner has challenged the practices of Visa and MasterCard, arguing they influence upward or discourage the reduction of card acceptance fees paid by merchants. As well, the Commissioner has challenged the proposed joint venture between Air Canada and United Continental on transborder routes under the merger provisions of the Act, as well as certain historical alliance agreements between Air Canada and each of United and Continental. These alliance agreements are being challenged under the new s. 90.1 of the Act, which allows the Commissioner to seek to block or alter the terms of an alleged anti-competitive agreement between competitors. This is the first challenge under this provision, which was added in 2009 and took effect on March 12, 2010, when the changes to Canada's capital provisions took effect. These cases should provide very important judicial guidance on these new provisions.
  2. The wait continues for guidance on abuse of dominance. Despite issuing draft revised enforcement guidelines for the abuse of dominance provisions in January 2009, there is no clear timeline for when either a subsequent consultation draft or a final version of the revised guidelines will be released. Initially delayed as the Commissioner pursued her case against The Canadian Real Estate Association, it had been hoped the guidelines would be finalized after the parties reached a settlement. It is possible the revised guidelines will need to await the conclusion of the Commissioner's case against the Toronto Real Estate Board; preliminary hearings have been set for mid-October but the main merits hearing has not yet been scheduled.


It is clear that the Bureau is now in "enforcement mode." This reinforces the need for companies to revisit their own compliance programs or consider implementing a program if they do not currently have one. With the recent amendments to the Act having added hefty monetary penalties for certain civil matters, compliance is more important than ever. And, more than ever, it is clear that compliance programs can never be regarded as static documents. They must be regularly reviewed and audited, and corporate conduct and actions must be continually reviewed and assessed against these programs.


1 Remarks by Melanie L. Aitken, Commissioner of Competition, CBA Spring Conference: Focus on Civil (Toronto, Ontario, May 3, 2011) available at

2 See our bulletin on the penultimate consultation draft at

Norton Rose OR LLP

Norton Rose OR LLP is a member of Norton Rose Group, a leading international legal practice offering a full business law service to many of the world's pre-eminent financial institutions and corporations from offices in Europe, Asia Pacific, Canada, Africa and the Middle East.

The Group's lawyers share industry knowledge and sector expertise across borders to support clients anywhere in the world. The Group is strong in financial institutions; energy; infrastructure, mining and commodities; transport; technology and innovation; and pharmaceuticals and life sciences.

Norton Rose Group has more than 2600 lawyers operating from 39 offices in Abu Dhabi, Amsterdam, Athens, Bahrain, Bangkok, Beijing, Brisbane, Brussels, Calgary, Canberra, Cape Town, Dubai, Durban, Frankfurt, Hamburg, Hong Kong, Johannesburg, London, Melbourne, Milan, Montréal, Moscow, Munich, Ottawa, Paris, Perth, Piraeus, Prague, Québec, Rome, Shanghai, Singapore, Sydney, Tokyo, Toronto and Warsaw; and from associate offices in Dar es Salaam, Ho Chi Minh City and Jakarta.

Norton Rose Group comprises Norton Rose LLP, Norton Rose Australia, Norton Rose OR LLP, Norton Rose South Africa (incorporated as Deneys Reitz Inc), and their respective affiliates.

On January 1, 2012, Macleod Dixon merges with Norton Rose OR, creating a global energy and mining powerhouse within Norton Rose Group. For more information, please visit

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions