Under section 124.1 of the Competition Act (“Act”), any person may apply to the Commissioner of Competition (“Commissioner”), with supporting information, for a binding written opinion regarding the application of one or more sections of the Act.
Written opinions are available under the following sections 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 the civil agreements section of the Act (90.1).
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.
Importantly, the Commissioner has discretion under the Act to issue advisory opinions and may consider factors including whether the Bureau’s recommended information requirements to apply for an opinion have been met, facts are uncertain or hypothetical or issuing an opinion would interfere with an ongoing examination or inquiry.
A written opinion, if issued, will state whether, in the Commissioner’s opinion, particular sections of the Act included in the request apply to the proposed conduct. It is worth noting, however, that the Bureau has narrowed the scope of advice provided under such opinions. The Bureau’s current policy is not to provide an assessment of the effects on competition of proposed conduct. The Bureau will also not provide an opinion on the application of potential defences and there are some sections of the Act that do not currently fall within the Commissioner’s policy for written opinions. As such, while the Act refers to “any provision of the Act”, the Commissioner exercises his discretion in issuing opinions in relation to some topics and sections of the Act.
Written opinions are typically sought with confidentiality requests, including invoking section 29 of the Act. Section 29 sets out confidentiality protections for information provided to the Bureau including voluntarily provided information (as in the case of written opinion applications).
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 policies for issuing written opinions, fees and recommended information to be included in written opinion applications are set out in a series of overviews and Bulletins (see links below).
LINKS AND RESOURCES
Competition Act: Competition Act, Competition Bureau: Written Opinions, Bulletins: Fee and Service Standards Policy, Fee and Service Standards Handbook for Written Opinions, Fees and Service Standards Handbook for Mergers and Merger-Related Matters.
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