Canada: Current Developments in Canadian Competition Law

There are four aspects of Canadian Competition Law which are now under public or parliamentary review. In only one might there be change in the law or administrative practice in the immediate future. The others merit observation because suggested changes could definitely modify either the law or administrative practice.

The areas under consideration are:

  1. Bill C-249 which, if enacted, would change the law on the treatment of efficiencies;
  2. Merger Enforcement Guidelines as applied to a Bank Merger with respect to which public comment was requested on November 5, 2003;
  3. Options for amending the Competition Act with respect to which public comments were requested on June 23, 2003 and upon which the Public Policy Forum has reported on April 8, 2004;
  4. Merger Enforcement Guidelines on which the Competition Bureau sought public comment on March 25, 2004.

Bill C-249

Because Bill C-249 is now before the Senate, having been passed by the House of Commons, it is quite possible that it will become law. But hearings before the Senate Committee, and the prospect of an election present real uncertainties. If passed, the effect of the change will be that the earlier distinctive treatment of efficiencies found in Section 96 of the Competition Act will no longer be the law. Pursuant to Section 96 efficiencies could "trump" anti-competitive effects in a merger. After the passage of Bill C-249, efficiencies would be afforded less weight in merger review. Bill C-249 would also require that for efficiencies to be positively evaluated, they must result in some consumer benefit.

While significant in the context of recent Canadian merger review, Bill C-249 would bring Canadian law on efficiencies more closely into alignment with that of the U.S. and of the EU.

For greater detail, please see Global Competition Review, Vol. 6, Issue 9, October 2003.

Bank Merger Enforcement Guidelines

In its request of November 5, 2003 for comment on the Bank Merger Enforcement Guidelines, no revised draft was provided. The Bureau indicated at the start of the consultation that it would issue its revised bank merger guidelines on June 30, 2004. This date was intended to coincide with the announcement of the overall policy framework that the federal government would apply to large bank mergers. If as widely expected, a general election is called before the end of June, it is very likely that the policy framework will be delayed, with the consequence that the Bureau guidelines will also be delayed.

Options for Amending the Competition Act

While the June, 2003 discussion paper on Options for amending the Competition Act suggested amendments ranging over a wide field, including the further introduction of Administrative Monetary Penalties, Civil Rights of Action, Decriminalization of Price Provisions, and the creation of "per se" offences, the path towards legislative amendment remains tortuous and unclear. The Public Policy Forum was retained to request and review comments on the proposed changes. That itself was a lengthy process, the results of which are chronicled in the Final Report of PPF of April 8, 2004. That Report, while comprehensive, does little to clarify the situation. PPF reviews submissions and arguments put forward with respect to each of the proposed changes and effectively summarizes those positions. But it does not evaluate the effectiveness of the arguments, choosing instead to count the submissions and indicate the number that were "for" and those "against" each specific proposal.

No further timetable is available and there has been no articulation from the Competition Bureau or from Government as to which, if any, of the suggested changes might find their way into legislation. Those with an insatiable appetite for detail should refer to:

Merger Enforcement Guidelines

With the March 25, 2004 request for public comments, the Competition Bureau did release draft revised merger enforcement guidelines.

The revised draft is a positive and effective step in providing coherent guidelines on the context in which merger review is undertaken by the Bureau. The draft guidelines are a distinct improvement on the Merger Enforcement Guidelines of 1991. The Competition Bureau has indicated an intention to issue the MEGs in final form in the summer of 2004.

But while they are clear, and frequently very helpful, the draft seeks to recast the treatment of efficiencies in light of the Federal Court rulings in Superior Propane. There a merger to monopoly was permitted on the basis of efficiencies having offset any substantial lessening of competition. The difficulty in anticipating rapid promulgation of the draft MEGs in final form is that Bill C-249, noted above, would change the law on efficiencies and would consequently require a reconsideration of the reconsideration of efficiencies. This may be a garbled way of stating that the draft MEGs may not assume final shape until after the fate of Bill C-249 is known.

For lawyers there is much to read; for economists much to consider. For business and, more particularly bank and other merger proponents, it appears not much can be done except wait.

The content of this article does not constitute legal advice and should not be relied on in that way. Specific 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
Check to state you have read and
agree to our Terms and Conditions

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.

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 by clicking here .

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.


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.