Competitiveness Bureau Publishes Recommendations for Levels of competition Act Reforms

On March 15, 2023, the Canadian Levels of competition Bureau (Bureau) posted its submission to the Canadian federal government (Federal government) recommending various reforms to the Opposition Act (Act). The Bureau’s submission is component of a extensive-ranging general public consultation that the Federal government initiated in November 2022 in relationship with its overview of the Act. The consultation invitations comments from a broad variety of stakeholders on the upcoming of the Act and level of competition coverage in Canada.

As pointed out in our November 2022 Blakes Bulletin: Canadian Authorities Announces Evaluation of the Competition Act, the Government’s evaluation will examine Canada’s competitors framework, together with the scope of the Act, the enforcement techniques and corrective steps established out in the Act, and level of competition coverage in progressively electronic and data-pushed marketplaces. The consultation period of time runs right until March 31, 2023, and interested parties are invited to supply opinions by that date.

The Bureau’s submission includes a lot more than 50 tips outlining its views with respect to how the Act must be revised. The Bureau has created a quantity of suggestions for adjust with regard to each of the five “pillars” of the Act outlined in the Government’s consultation paper, The Upcoming of Competitiveness Policy in Canada: (1) merger overview, (2) unilateral perform, (3) competitor collaborations, (4) deceptive advertising, and (5) administration and enforcement processes. If adopted, the tips would consequence in sweeping improvements to the Act, properly amounting to a rewrite of the complete Act and a entire reset of competitiveness policy in Canada to align with the Bureau’s current sights of how Canadian competitiveness regulation need to function.

Among the other factors, the Bureau’s suggestions would:

• Raise the burden on corporations by noticeably increasing the demands to supply facts in connection with merger assessments, sector scientific tests or Bureau investigations of civil reviewable matters these types of as abuse of dominance

• Significantly alter the landscape for merger assessments and raise the evidentiary load and timing limitations organizations encounter by:

  • Doing away with the efficiencies defence and lowering efficiencies to a variable to be regarded in merger evaluate

  • Introducing a structural presumption shifting the stress of evidence to merging functions to show that a merger will be unlikely to lead to competitive damage wherever the merger exceeds particular marketplace share or concentration thresholds

  • Allowing the Bureau to compel oral examinations for mergers that get a supplementary information and facts request (SIR) that could consequence in the post-SIR compliance waiting time period staying prolonged from 30 times to up to 90 days, or a lot more

• Rewrite the Act’s solution to competitor collaborations by:

  • Criminalizing selected get-side agreements

  • Introducing administrative financial penalties for anti-competitive competitor collaborations challenged less than the civil provisions of the Act

  • Growing the scope of the civil competitor collaboration provision to capture historical agreements and hurt

  • Demanding the notification of pharmaceutical patent litigation settlements and of settlement agreements in issues in which personal access to the Tribunal has been sought

On April 4, 2023, we will be web hosting a seminar on Sweeping Alterations to Canada’s Competitiveness and Foreign Financial investment Guidelines.