OVERVIEW OF COMPETITION ACT
Under section 124.1 of the Competition Act (the “Act”), any person may apply to the Commissioner of Competition (the “Commissioner”), with supporting information, for a binding written opinion regarding the application of any provision of the Act.
Written opinions can be a practical way to obtain comfort for some types of proposed business practices that could potentially raise issues under Canadian competition law. Advisory opinions, however, are only available for proposed conduct.
The Commissioner has discretion whether to issue an advisory opinion, and may consider factors such as whether the Bureau’s recommended information requirements to apply for an opinion have been met, whether facts are uncertain or hypothetical or whether the issuance of an opinion would interfere with an ongoing examination or inquiry.
A written opinion will, if issued, provide an opinion from the Bureau as to whether the particular provisions (i.e., sections of the Act) included in the request apply to the proposed conduct or practice. It is worth noting, however, that the Bureau has narrowed the scope of advice provided under such opinions, such that the Bureau’s current policy is not to provide an assessment of the effects on competition of the proposed conduct or practice. The Bureau will also not provide an assessment of potential defences.
With respect to confidentiality, advisory opinions are typically sought with confidentiality requests, including invoking section 29 of the Act. Section 29 of sets out confidentiality protections for information provided to the Bureau including voluntarily provided information, subject to exceptions that include the “administration and enforcement of the Act”. The Bureau’s practice is also to publish advisory opinions, but will redact (i.e., anonymize) an opinion prior to publication on request.
Advisory opinions, if issued, are binding on the Commissioner if all the material facts have been submitted, they are accurate and for as long as they remain substantially unchanged.
The Bureau’s Fee and Service Standards Handbook for Written Opinions contains more information on the Bureau’s policy for issuing advisory opinions, information required for the various provisions of the Act and fees and service standards.
Written opinions are available under the following provisions of the Act, among others: conspiracy (section 45), criminal and civil misleading advertising (52 and 74.01), deceptive telemarketing (52.1), other deceptive marketing practices, multi-level marketing and pyramid selling (55 and 55.1), performance claims (74.01(1)(b)), promotional contests (74.06), resale price maintenance (76), exclusive dealing / tied selling / market restriction (77), abuse of dominance (79) and civil agreements provision (90.1).
LINKS AND RESOURCES
Competition Act: Competition Act – Competition Bureau: Written Opinions – Fee and Service Standards – Bulletins: Fee and Service Standards Handbook for Written Opinions, Fees and Service Standards Handbook for Mergers and Merger-Related Matters, Fees and Service Standards Policy for Mergers and Merger-Related Matters, Fee and Service Standards Policy, Information Bulletin on the Communication of Confidential Information Under the Competition Act.
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