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
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
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
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.
The Commissioner of Competition addressed innovation, enforcement and policy initiatives at the Competition Bureau in his keynote speech, "Strengthening Competition: Innovation, Collaboration and Transparency."
Used car listing website operator CarGurus Inc.'s attempt to force rival Trader Corporation to supply it with vehicle listing data has encountered a dead end as the Competition Tribunal denied it leave to commence a private application under several provisions of the Competition Act.
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