In our annual forecast of the year ahead for Canadian competition and foreign investment review law, we evaluate how developments in 2015 will influence these areas of the law in 2016. Our top issues and trends to watch for this year include the following:

  • The impact of the new federal government. Although foreign investors can generally expect "business as usual" under the new Liberal government, incremental reforms to the Investment Canada Act are likely – in particular, a clarification of the net benefit test. With regard to competition legislation proposed by the previous government, it remains to be seen whether the Liberal government will resuscitate the much-criticized Price Transparency Act or move ahead with non-controversial technical amendments to clarify the Competition Act.
  • An increasing focus on the digital economy and other innovative industries by the Competition Bureau. The Commissioner of Competition recently commented that the impact of innovation should be the "predominant concern in some industries." Signs of this focus were already evident in late 2015 and can be expected to increase in the new year.
  • A focus by the Bureau on market studies: Are formal powers required? The Bureau has identified market studies as a key tool to inform policy makers about unnecessary obstacles to competition. There has been some criticism that the Bureau lacks the jurisdiction to carry out these studies, which the Bureau may seek to address by asking for amendments to the Competition Act that would provide it with the necessary formal powers.
  • The Competition Tribunal's forthcoming abuse of dominance decision. Expected to be released early this year, the Competition Tribunal's decision in the Commissioner of Competition's abuse of dominance litigation against the Toronto Real Estate Board will set the stage for future enforcement in this area.
  • A possible reassessment of Competition Bureau decision-making. Given the number of significant defeats the Bureau has suffered in recent years, including in two major criminal cases in 2015, it may revisit its investigatory and decision-making processes in high-profile matters.
  • Contested mergers and hold separate orders. In light of the Competition Tribunal's May 2015 injunction decision in the contested merger between two major gasoline retailers, we expect that the Bureau will increase its efforts to obtain economic evidence from merging parties during its reviews of transactions that it is considering challenging. It's also likely that the Bureau will continue to use applications under section 104 of the Competition Act as a tool in future contested merger proceedings.

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