Canadian COMPETITION LAW

March 8, 2010

Canada’s new criminal conspiracy rules will come into force Friday March 12, 2010. The changes, which are the final recent Competition Act amendments to come into force, will significantly change the enforcement of criminal cartels in Canada and is expected to also have significant impacts on competition law private actions and class actions.  Effective Friday, Canada will have three new criminal conspiracy offences for “hard core” cartel conduct, making bare price fixing, market allocation/division and supply restriction agreements per se illegal – i.e., without the necessity of establishing any anti-competitive effects on a relevant market (or markets).  The penalties for contravening the conspiracy provisions will also more than double with fines of up to CDN $25 million and/or imprisonment for up to fourteen years.

At the same time, a second civil provision will be introduced as part of the Competition Act amendments under which other commercial agreements (i.e., agreements that do not fall within the scope of the new criminal offences) may be reviewed, where they may prevent or lessen competition substantially.  Some of the expected impacts of the new rules include: (i) increasing the risk of engaging in hard-core anti-competitive conduct (e.g., price-fixing agreements), (ii) lowering the bar for the Competition Bureau and private plaintiffs to establish a criminal conspiracy under section 45 (the criminal conspiracy provision of the Act), (iii) increasing the importance of reviewing commercial agreements (and other commercial arrangements, such as information sharing arrangements or joint ventures) for competition law compliance and (iv) potentially leading to an increase in private action activity in Canada.

CANADA’S NEW NOTIFIABLE TRANSACTIONS REGULATIONS COME INTO FORCE

On February 2, 2010 Canada’s new Notifiable Transactions Regulations came into force.  On February 16, 2010, the Competition Bureau issued its new single notification form for Canadian merger notification.  The coming into force of the new Notifiable Transactions Regulations, together with the recently issued notification forms (together with section 116 and 118 certificates), are among the last changes to Canada’s new competition and foreign investment law regimes to come into force (that include the introduction of a new U.S.-style two-stage merger control regime).  For more information about Canada’s new merger control regime vist our Merger Notification page or see the Bureau’s recent News Release at: www.competitionbureau.gc.ca.

NEW PUBLICATIONS

Competition Law and REALTORS – A National Competition Law Course For Organized Real Estate

The Alliance for Canadian Real Estate Education (ACRE) and The Canadian Real Estate Association (CREA) will be launching a new national competition law compliance course for Canadian REALTORS this spring entitled Competition Law and REALTORS.  This upcoming half-day competition law course, prepared by ACRE and CREA for Canadian real estate professionals and to be offered across Canada, will provide an overview of competition law as it applies to organized real estate in Canada.

Topics for this course will include: (i) how the criminal conspiracy, misleading advertising, price maintenance, deceptive telemarketing and abuse of dominance provisions of the Competition Act apply to the real estate industry in Canada, (ii) an overview of the recent Competition Act amendments, (iii) basic compliance guidelines for real estate professionals, (iv) guidelines for board and association meetings, (v) practical competition law case studies and (vi) Canadian competition law resources.

This course, and the text Competition Law and REALTORS, has been prepared by Steve Szentesi.  For more information about this course, contact ACRE: www.acree.ca.

Competition Law For Business Lawyers – The Basics

Do you as a business lawyer know the scope and impact of the new Canadian competition law rules?  Do your clients know the potential impacts and exposure?

We have issued a new competition law publication for business lawyers entitled Competition Law for Business Lawyers – The Basics.  This short publication provides an overview of key areas of competition law for business lawyers including short overviews of the Competition Act, the recent Competition Act amendments, enforcement and penalties, Canadian merger control, conspiracy, advertising and marketing and the application of the Competition Act to trade associations.

For a complimentary copy, contact us at steve@nortonstewart.com or info@competitionlawcanada.com.

Competition Law and Trade Associations – The Basics

Trade associations can serve many legitimate purposes, including promoting common interests to the public, lobbying, advocacy, research, education and promoting and improving product standards.  However, because trade association activities involve the direct interaction of direct competitors, association activities can in some cases raise competition law issues under the Competition Act.

In general, some of the types of trade association activities that can potentially raise competition law issues include those dealing with pricing, advertising, customers, territories, market shares, terms of sale and other key aspects of competition.  Some of the specific association activities that can potentially raise issues include: (i) board and membership meetings, (ii) information exchanges, (iii) association rules and bylaws (e.g., mandatory or suggested fee guidelines or advertising restrictions), (iv) dealing with members and discipline and (v) advertising or marketing restrictions.

Based on the potential competition law issues that can sometimes arise in the trade association context, it is prudent for Canadian associations to have competition law compliance programs and procedures in place.

This short new publication, Competition Law and Trade Associations – The Basics, is available to Canadian trade association clients and their executives as part of the competition law compliance programs that we design and offer to Canadian associations.  For more information about this publication and our competition law and compliance services for trade associations, contact us at steve@nortonstewart.com or info@competitionlawcanada.com.

UPCOMING COMPETITION LAW EVENTS

CLE BC Seminar: Canada’s New Competition & Foreign Investment Law, 2010

Steve Szentesi will be chairing and speaking and Tom Hakemi will be speaking at the upcoming CLE BC seminar: Canada’s New Competition & Foreign Investment Law 2010.  This upcoming half-day practitioner-oriented seminar, which will be held on March 18th at the Coast Coal Harbour Hotel, will give an overview of the recent sweeping Competition Act amendments, including the coming into force of the Canada’s new two-track criminal conspiracy regime that will come into force Friday March 12th.

In addition, members from the Competition Bureau’s Criminal Branch in Gatineau and from the Competition Bureau’s Vancouver office will be attending this seminar to answer questions about the Competition Bureau and the enforcement of Canada’s new competition laws.

For more regulatory law updates follow me on Twitter: @CanadaAttorney

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