Welcome to the May issue of Blakes Competitive Edge, a monthly publication of the Blakes Competition, Antitrust & Foreign Investment group. Blakes Competitive Edge provides an overview of recent developments in Canadian competition law, including updates on enforcement activity by the Canadian Competition Bureau (Bureau), recent initiatives and key trends.
- The Bureau completes 57 merger reviews to the end of April, a 20% decrease over the same period in 2022 (71), and a 28% decrease over the same period in 2021 (79).
- New criminal prohibition against wage-fixing and no-poach agreements under the Competition Act will come into effect on June 23, 2023.
- The Federal Court of Appeal upholds a Federal Court decision denying certification of a class action alleging that the defendants conspired to limit the supply of Dynamic Random Access Memory chips.
April 2023 Highlights
- 16 merger reviews completed
- Primary industries: manufacturing (25%); finance and insurance (19%); real estate and rental and leasing (19%); wholesale trade (13%)
- Zero consent agreements (remedies) filed
- Zero judicial decisions filed
- Six transactions received an Advance Ruling Certificate (38%); 10 transactions received a No Action Letter (63%)
January – April 2023 Highlights
- 57 merger reviews completed
- Primary industries: manufacturing (25%); mining, quarrying, and oil and gas extraction (21%); finance and insurance (18%); real estate and rental and leasing (11%)
- One consent agreement (remedy) filed
- One judicial decision filed
- 24 transactions received an Advance Ruling Certificate (42%); 31 transactions received a No Action Letter (54%)
Merger Reviews Completed in 2023 by Primary Industry
Criminal prohibition against wage-fixing and no-poach agreements takes effect next month
- On June 23, 2023, amendments to the Competition Act to criminalize agreements between employers to fix, maintain, decrease or control wages or other terms or conditions of employment (wage-fixing agreements) or not to solicit or hire each other's employees (no-poach agreements) will come into effect. Such agreements may result in maximum imprisonment of up to 14 years, a fine in the discretion of the court, or both. Breaches of this new offence would also be subject to private actions (including class actions) for damages. The Bureau has not yet released its final guidance with respect to its interpretation of the prohibition. However, its draft guidance published in January 2023 provides insight into the Bureau's likely approach to enforcement once the amendments are in effect. For more information regarding the draft guidance, see our January 2023 Blakes Bulletin: Competition Bureau Publishes Draft Guidance on Wage-Fixing and No-Poach Agreements.
WestJet completes acquisition of Sunwing
- On May 1, 2023, the WestJet group announced that it had completed its acquisition of Sunwing Vacations and Sunwing Airlines. The transaction, which was first announced in March 2022, was approved by the Minister of Transportation last month. For more information regarding the Minister's approval, see our April 2023 edition of Blakes Competitive Edge.
Section 36 Remedies Under the Competition Act
Federal Court of Appeal upholds decision to deny certification of a class action
- On April 28, 2023, in Jensen v. Samsung Electronics Co. Ltd., the Federal Court of Appeal (FCA) upheld the Federal Court's decision to dismiss the plaintiffs' motion to certify a proposed class action. In their pleadings, the appellants alleged that the respondents had entered into an agreement to suppress the supply, and increase the price, of Dynamic Random Access Memory chips contrary to sections 45 and 46 of the Competition Act. At certification, the Federal Court found that the plaintiffs had failed to plead material facts showing that the respondents had entered into an agreement, an essential element of the offences set out in sections 45 and 46 of the Competition Act. The Federal Court found the allegations that the respondents had engaged in direct private communications in furtherance of a conspiracy were "vague, brief and conclusory." It also found the allegations that a conspiracy could be inferred from the defendants' public statements misquoted these public statements and read them out of context. The FCA denied the appeal and upheld the Federal Court's decision, finding that the Federal Court applied the correct legal test in reaching this finding. The FCA strongly endorsed the "two step approach" to establishing some basis in fact for the common issues, requiring plaintiffs to show that the common issues (1) actually exist in fact and (2) can be answered in common across the entire class. For more information regarding the Federal Court's decision, see our November 2021 Blakes Bulletin: Provincial and Federal Courts Decline to Advance Competition Act Claims in Proposed Class Actions.
Investment Canada Act
- Information regarding Investment Canada Act decisions since December 2022 have not yet been published and will be addressed in a subsequent edition of Blakes Competitive Edge.
- Browse our thought-leadership insights from the Competition, Antitrust & Foreign Investment group to learn more.
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