Canadian COMPETITION LAW

OVERVIEW OF KEY AMENDMENTS TO
CANADA’S COMPETITION ACT
(2009 – 2024)

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JUNE 2024
COMPETITION ACT AMENDMENTS
(BILL C-59)

On June 20, 2024, federal Bill C-59 was passed in Canada (the Fall Economic Statement Implementation Act, 2023). Bill C-59 introduced the third of three successive significant rounds of amendments to Canada’s federal Competition Act in two years (together with Bill C-19 and Bill C-56 – both of which are discussed below in more detail).

This new round of amendments to the Competition Act completed a sweeping overhaul of Canada’s federal Competition Act across virtually all key provisions of Canadian competition legislation. These amendments are also the most significant changes to Canadian competition law since the modern Competition Act came into effect in 1986 replacing the former Combines Investigation Act.

The Bill C-59 amendments, among other things, strengthen the federal Competition Bureau’s powers to enforce key deceptive marketing provisions of the Competition Act (e.g., relating to drip pricing, performance claims and ordinary selling price (OSP) claims), strengthen private party rights to seek Competition Tribunal remedies (e.g., for civil deceptive marketing and violations of the civil agreements provisions of the Act), introduce new penalties (e.g., administrative monetary penalties for violating the civil agreements provisions of the Act (under section 90.1), introduce new provisions relating to reprisal actions penalizing individuals for complying with the Competition Act and introduce a new clearance regime for environmental protection related agreements, among other things.

Canada’s Competition Act merger review regime was also substantially overhauled, eliminating the efficiency defence, introducing market share presumptions and a more restrictive remedial test for restoring competition.

These amendments, together with those enacted in June 2022 and December 2023 (Bill C-19 and Bill C-56 – both discussed below), increase the potential competition law risk for companies, trade and professional associations and other entities and organizations, particularly those without credible and effective competition law compliance programs and that have not reviewed their business practices to reflect Canada’s new competition laws.

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DECEMBER 2023
COMPETITION ACT AMENDMENTS
(BILL C-56)

On December 15, 2023, Bill C-56 largely came into force (An Act to amend the Excise Tax Act and the Competition Act), which introduced the second of three successive significant rounds of amendments to Canada’s federal Competition Act in two years (together with Bill C-19 and Bill C-59 – discussed above and below).

This second new round of amendments to the Competition Act, intended to strengthen the ability of the Competition Bureau and private parties to enforce Canadian competition law and enhance competition generally in Canada, included fundamental changes to Canadian competition law not seen since the last major amendments to Canada’s competition laws in 2009.

In general, the amendments to the Competition Act under Bill C-56 included new broader powers for the federal Competition Bureau to conduct market studies, changes to the core substantive test for civil abuse of dominance under section 79 (creating new two-track tests for abuse of dominance and lowering the burden to establish abuse of dominance), increased penalties for abuse of dominance, broadening the civil agreements provision (section 90.1) to include agreements between non-competitors (i.e., to also apply to vertical agreements, such as distribution/supply agreements and vertical joint venture agreements) and repealing the efficiencies defences under section 90.1 and also for mergers under section 96.

These Bill C-56 amendments, along with those enacted in June 2022 and June 2024 (Bill C-19 and Bill C-59 – discussed above and below), increased the potential competition law risk for companies, trade and professional associations and other entities, particularly those without credible and effective competition law compliance programs and that have not reviewed their business practices to reflect Canada’s new competition law regime.

For more information about the December 2023 Competition Act amendments, see: Significant Canadian Competition Act Amendments Come Into Force (Bill C-56). See also: Competition Bureau, Guide to the December 2023 amendments to the Competition Act.

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JUNE 2022
COMPETITION ACT AMENDMENTS
(BILL C-19)

On June 23, 2022, Bill C-19 came into force (An Act to implement certain provisions of the budget tabled in Parliament on April 7, 2022 and other measures), which introduced the first of three significant successive rounds of amendments to Canada’s federal Competition Act in two years (together with Bill C-56 and Bill C-59 – discussed above).

These amendments to the Competition Act include significant increases to the civil and criminal penalties under the Competition Act, new employment related wage-fixing and no-poaching offences, new prohibitions against drip pricing and expansion of private rights of access to the Competition Tribunal for abuse of dominance under section 79, among other things.

Most of these Bill C-19 amendments came into force on June 23, 2022. However, the amendments to the conspiracy provision (including new wage-fixing and no-poaching offences and increased criminal fines) came into force on June 23, 2023 (a one-year transitional period intended to allow companies and other organizations to adjust for the criminal conspiracy-related changes).

These Bill C-19 amendments, together with those enacted in December 2023 and June 2024 (Bill C-56 and Bill C-59 – discussed above) increase the potential competition law risk for companies, trade and professional associations and other types of organizations, particularly those without credible and effective competition law compliance programs and that have not reviewed their business practices to reflect Canada’s new competition laws.

For more information about the June 2022 Competition Act amendments under Bill C-19, see: Sweeping Canadian Competition Act Amendments Passed.

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2009

COMPETITION ACT AMENDMENTS
(BILL C-10)

Sweeping amendments to Canada’s Competition Act came into force in 2009 and 2010 under Bill C-10 that were the most significant changes to Canadian competition/antitrust law in twenty-five years and, in some cases, since competition law was introduced in Canada in 1889 (one year before the Sherman Act in the United States in 1890).

These 2009 amendments included changes to many of the cornerstone provisions of Canada’s federal Competition Act including to the criminal conspiracy (section 45), bid-rigging (section 47), price maintenance (section 62 now section 76), abuse of dominance (section 79), misleading advertising and merger notification provisions.  Some of the key changes included:

Conspiracy (Cartels). Introducing a U.S.-style two-track criminal conspiracy regime, with “per se” criminal offences for three types of “hard core” cartel agreements between actual or potential competitors under section 45 (price-fixing, market allocation and output restriction agreements) and a second civil track for other types of non-hard core anti-competitive agreements that may prevent or lessen competition substantially under section 90.1. For more information, see: Conspiracy (Cartels).

Conspiracy Penalties. Significantly increasing the penalties for criminal conspiracy offences with fines of up to Cdn. $25 million (per count) and/or imprisonment for up to 14 years. For more information, see: Conspiracy (Cartels).

Private Actions & Enforcement. Removing the former competitive effects test (the former “undueness” requirement) for criminal conspiracy offences under section 45, making it easier for private plaintiffs to commence civil actions and for the Competition Bureau to prove criminal conspiracy offences.

Bid-rigging. Introducing a new bid-rigging offence, making it a criminal offence to agree to withdraw a bid already made (in addition to the two existing offences: submitting a bid arrived at by agreement or agreeing not to bid). For more information, see: Bid-rigging.

Misleading Advertising. Significantly increasing the penalties for civil misleading advertising including “administrative monetary penalties” (essentially civil fines) of up to Cdn. $750,000 for individuals and Cdn. $10 million for corporations. For more information, see: Misleading Advertising.

Criminal Pricing Provisions. Repealing the former criminal predatory pricing and price discrimination provisions of Canada’s Competition Act. Predatory pricing and price discrimination conduct may, however, still be challenged under the civil abuse of dominance provisions of the Competition Act (sections 78 and 79). For more information, see: Abuse of Dominance.

Price Maintenance. Replacing the former per se criminal price maintenance offence (section 62 of the Competition Act) with a new civil provision (section 76) that now includes a market effects test, which requires that an “adverse effect on competition” be proven in addition to the other required elements under the new civil section 76. For more information, see: Price Maintenance.

Abuse of Dominance. Introducing significant civil fines for the first time for abuse of dominance in Canada under section 79 of the Competition Act of $10 million ($15 million for subsequent orders). In the intervening years since these amendments, the penalties for abuse of dominance have been substantially increased and new legal tests introduced making it easier to establish an abuse of dominance. For more information, see: Abuse of Dominance.

Mergers. Introducing a new U.S.-style two-stage merger notification and review regime and increased Competition Bureau powers to request additional information from merging parties, including additional filing requirements and higher penalties for non-compliance.  The size of transaction threshold was also increased with a new annual indexing formula to adjust the size of transaction threshold annually to reflect changes in Canada’s GDP.

Post-merger challenges. Reducing the period in which Canada’s federal Competition Bureau may challenge completed mergers from three years to one year.

Domestic airline abuse of dominance provisions. Repealing former specific abuse of dominance provisions relating to domestic airlines in Canada.

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SERVICES AND CONTACT

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