November 18, 2022
On November 17, 2022, Canada’s federal government announced a sweeping stage II review of Canada’s competition laws (see: Consultation on the future of competition policy in Canada).
In announcing the consultation, the government said:
“The Government of Canada welcomes your perspective and comments on a wide range of issues, including how to ensure the law and its provisions remain effective in serving our national interest, and how to improve or protect competition in emerging data and digital markets.”
Some of the primary rationales for this new review of Canada’s competition law regime, according to the government, include the following:
“Competition law has been thrust into the centre of Canadian policy debate as concerns mount about affordability, market concentration and the enormous influence of new economic giants. Our economy has changed: the rise of digital commerce has upended the way Canadians do business and consume products, leading to a new class of dominant gatekeepers and uneven growth. Following the COVID-19 pandemic, an increasing cost of living threatens to worsen inequalities and has Canadians worried about their bottom line and the security of supply chains.”
This new significant consultation on Canadian competition laws, which is part of the most extensive review since 2009 (see: Canadian Competition Act Amendments (2009 and 2022)) and intended to “inform the government’s next steps, including potential legislative steps”, includes the release of a “consultation scene setter” document entitled Making Competition Work for Canadians and a discussion paper entitled The Future of Competition Policy in Canada.
This new consultation follows an initial round of amendments to both the civil and criminal provisions of Canada’s Competition Act, which came into force on June 23, 2022 (for our post on the key amendments passed in June 2022, see: Sweeping Canadian Competition Act Amendments Passed).
The consultation is a result, in part, of government, stakeholder and Competition Bureau recognition over the past several years that Canada’s competition laws were out of step with other major international jurisdictions, notably the European Union and United States, including in relation to emerging markets (particularly digital markets) and enforcement to deter anti-competitive conduct, including Competition Bureau powers and magnitude of potential penalties.
The federal government’s discussion paper, which was released in connection with their new newly announced Competition Act modernization consultation, sets out a very broad and extensive discussion of topics that the government is looking for public input on, including in relation to merger review, unilateral conduct, competitor collaborations, deceptive marketing and enforcement of Canadian competition law.
More specifically, the government has identified the following seven “main pillars” of the Competition Act that may warrant amendment: (i) potentially harmful mergers (e.g., the current operation of the efficiencies defence under section 92 of the Competition Act); (ii) abuse of dominance (e.g., with regard to large online platforms); (iii) competitor collaborations; (iv) effects on labour; (v) impacts of new technology on deceptive marketing; (vi) the Competition Bureau’s enforcement powers (e.g., whether the Bureau should have the ability to make binding decisions); and (vii) private access to competition law enforcement (e.g., potentially further expanding the current scope of private access to the Competition Tribunal).
For more information and to submit submissions see: here.
The government will publish information and findings and next steps here.
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We are a Toronto based competition and advertising law firm offering business and individual clients efficient and strategic advice in relation to competition/antitrust, advertising, Internet and new media law and contest law. We also offer competition and regulatory law compliance, education and policy services to companies, trade and professional associations and government agencies.
Our experience includes advising clients in Toronto, across Canada and the United States on the application of Canadian competition and regulatory laws and we have worked on hundreds of domestic and cross-border competition, advertising and marketing, promotional contest (sweepstakes), conspiracy (cartel), abuse of dominance, compliance, refusal to deal and pricing and distribution matters. For more information about our competition and advertising law services see: competition law services.
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