On March 15, 2023, the Canadian Competition Bureau (Bureau)
published its submission to the Canadian government
(Government) recommending numerous reforms to the Competition
Act (Act). The Bureau's submission is part of a
wide-ranging public consultation that the Government initiated in November 2022 in connection with
its review of the Act. The consultation invites feedback from a
broad range of stakeholders on the future of the Act and
competition policy in Canada.
As noted in our November 2022 Blakes Bulletin: Canadian Government Announces Review of the Competition Act, the Government's review will examine Canada's competition framework, including the scope of the Act, the enforcement methods and corrective measures set out in the Act, and competition policy in increasingly digital and data-driven markets.
The consultation period runs until March 31, 2023, and interested parties are invited to provide feedback by that date.
The Bureau's submission includes more than 50 recommendations outlining its views with respect to how the Act should be revised. The Bureau has made a number of recommendations for change with respect to each of the five "pillars" of the Act outlined in the Government's consultation paper, The Future of Competition Policy in Canada: (1) merger review, (2) unilateral conduct, (3) competitor collaborations, (4) deceptive marketing, and (5) administration and enforcement processes. If adopted, the recommendations would result in sweeping changes to the Act, effectively amounting to a rewrite of the entire Act and a complete reset of competition policy in Canada to align with the Bureau's current views of how Canadian competition law should function.
Among other things, the Bureau's recommendations would:
- Increase the burden on businesses by significantly expanding the requirements to provide information in connection with merger reviews, market studies or Bureau investigations of civil reviewable matters such as abuse of dominance
- Significantly alter the landscape for merger reviews and
increase the evidentiary burden and timing restrictions businesses
- Eliminating the efficiencies defence and reducing efficiencies to a factor to be considered in merger review
- Introducing a structural presumption shifting the burden of proof to merging parties to show that a merger will be unlikely to cause competitive harm where the merger exceeds certain market share or concentration thresholds
- Allowing the Bureau to compel oral examinations for mergers that receive a supplementary information request (SIR) that could result in the post-SIR compliance waiting period being extended from 30 days to up to 90 days, or more
- Rewrite the Act's approach to competitor collaborations by:
- Criminalizing certain buy-side agreements
- Introducing administrative monetary penalties for anti-competitive competitor collaborations challenged under the civil provisions of the Act
- Expanding the scope of the civil competitor collaboration provision to capture historical agreements and harm
- Requiring the notification of pharmaceutical patent litigation settlements and of settlement agreements in matters where private access to the Tribunal has been sought
- Expand the rights of private parties by:
- Introducing a right of private action for civilly reviewable competitor collaborations
- Making it easier for private parties to obtain leave to bring an application in connection with civilly reviewable matters, including abuse of dominance
- Introducing a right for private parties to seek damages for breaches of the civil provisions of the Act
On April 4, 2023, we will be hosting a seminar on Sweeping Changes to Canada's Competition and Foreign Investment Rules. If you would like to join us, please send us an email.
For permission to reprint articles, please contact the Blakes Marketing Department.
© 2020 Blake, Cassels & Graydon LLP.
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.