Canada: Government Enacts Significant Changes To Canada’s Competition Laws

Last Updated: September 17 2009
Article by Yves Bériault, Oliver J. Borgers, Donald B. Houston, Randal Hughes, Richard Pawluk and Madeleine Renaud

Most Read Contributor in Canada, September 2018

Bill C-10, the Budget Implementation Act, 2009 received Royal Assent on March 12, 2009. The bill introduced significant changes to the Competition Act (Act), most notably in the area of competitor conduct. While the majority of changes came into force upon Royal Assent, some of the most significant amendments will come into force in March 2010.

In the last issue of the McCarthy Tétrault Co-Counsel: Business Law Quarterly we discussed the changes to the merger review provisions of the Act. In this issue, we discuss other changes to the Act that have been made under the bill and that will be of interest to our business clients.

A. Reform of Criminal Provisions

  • Per se Conspiracy Offence and a Dual-Track Approach — Under the current Section 45, the Crown must demonstrate beyond a reasonable doubt that agreements among competitors "unduly" lessen competition. When the amendments to the conspiracy provisions come into force on March 12, 2010, that burden will be removed for so-called "hard-core" cartels (i.e., agreements among competitors to fix prices, allocate markets or restrict supply), making it easier for the Crown (and civil plaintiffs) to prove price-fixing conspiracies. Parties to an agreement may defend a charge under the amended provision if they can prove the arrangement is ancillary and necessary to a broader agreement that is not within an impugned hard-core category. However, this defence may not alleviate all risk that arrangements between competitors, such as co-marketing agreements or other joint ventures, could be captured by the new provisions.
Agreements or arrangements between competitors other than hard-core cartels that substantially prevent or lessen competition will be civilly reviewable. The Commissioner of Competition may bring an application to the Competition Tribunal for an order prohibiting any person from doing anything under the agreement, but the conduct would not be subject to monetary penalties or criminal sanction.
The Competition Bureau has issued draft Competitor Collaboration Guidelines that describe the approach it will take in applying the dual-track regime to collaborations between competitors. Although still out for public consultation, the guidelines clarify some potential areas of uncertainty — suggesting, for example, that vertical agreements between suppliers and customers, as well as dual-distribution agreements between a single supplier and distributor, will be assessed under the civil, rather than criminal, provisions. Bill C-10 also provides that parties may apply prior to March 12, 2010 for an advisory opinion on how the new laws will apply to existing agreements without having to pay the standard service fee.
  • Higher Penalties — When the amendments to the conspiracy provisions come into effect on March 12, 2010, the maximum fine for conspiracy will increase from $10 million to $25 million, and the maximum prison term will increase from five years to 14 years.
Penalties for obstructing an investigation and bid-rigging also increased on Royal Assent: a new indictable category of obstruction offence was added with a maximum sentence of an unlimited fine and/or 10 years in prison. The maximum prison sentence for bid-rigging increased from five to 14 years, while the maximum unlimited fine was maintained.
  • No Criminal Sanction for Price Maintenance, Predatory Pricing or Price Discrimination — The provisions for criminal sanction for predatory pricing, price discrimination and price maintenance have been repealed, and a new provision added to the civil enforcement track for price maintenance. Moving price maintenance to the civil enforcement track removes the prospect of criminal sanction and civil actions for damages, but allows private parties to seek leave from the Tribunal to bring applications to regain supply on usual trade terms or other remedial orders. However, predatory pricing — and, potentially, price discrimination — will continue to present risks for those who possess market power, since the Commissioner of Competition will be able to seek administrative monetary penalties (AMPs) under the Act's abuse of dominant position provisions (as discussed below).
  • Effect on Civil Actions — Section 36 of the Act permits parties to sue for loss or damages suffered as a result of conduct that is contrary to the criminal provisions of the Act. Bill C-10 may make it easier for private plaintiffs to prove violation of the new conspiracy provision as the "unduly" element will be removed, but price discrimination, predatory pricing, and price maintenance are no longer subject to civil damage claims under the Act.

B. Changes to Reviewable Conduct Provisions

  • $10- to $15-Million Fines for Abuse of Dominant Position and Deceptive Marketing Practices — Those found by the Tribunal to have abused their dominant position (other than airlines) were previously not subject to monetary penalties, though the Tribunal was able to order a party to cease an offending practice and/or impose other potentially broad remedial orders. Corporations found to have engaged in civil deceptive marketing practices were subject to orders to cease the offending conduct, publish a notice, and pay an AMP of up to $100,000 for the first order and up to $200,000 thereafter.
Effective immediately, AMPs of up to $10 million are available for a first finding of abuse of dominant position or deceptive marketing practices and AMPs of up to $15 million are available for each subsequent finding.
  • Other Changes — Other changes to the civil provisions of the Act include: interim injunctions for misleading representations, repeal of the consignment selling provisions, private applications for price maintenance (with leave of the Tribunal), and repeal of airline-specific provisions.

The amendments to the Act present significant risks for businesses but may also create some opportunities, particularly in the area of pricing. Companies should review their competition law compliance programs to ensure that their business practices do not run afoul of the new laws, as well as to ensure that they identify new opportunities to improve their business.

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 Topics
Related Articles
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
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

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