As previewed in our February 2024 Canadian Competition Law Outlook and our November 2023 Blakes Bulletin: Revamping the Rules: Canadian Competition Act Update, significant and wide-ranging amendments to the Competition Act (Act) have received royal assent on June 20, 2024. This is the third wave of amendments, following amendments adopted in 2022 and 2023, with broad implications for all businesses across Canada. The key takeaways and amendments are summarized below.
Key Takeaways
Businesses need to be prepared for the broad ramifications of these amendments, including:
- The need for sophisticated merger analysis, as there is a greater burden on merging parties to justify a proposed transaction
- Careful review of advertising materials and public disclosure to ensure they are properly supported, especially with respect to environmental claims
- Greater litigation risk from the Competition Bureau (Bureau) and from private parties (as of June 2025)
- Review and updating of competition law compliance policies to reflect this shifting legal landscape, including increased risks of Bureau enforcement, private litigants, financial penalties and significant reputational implications
Key Amendments
1. Merger Review
- Allowing the Competition Tribunal (Tribunal) to conclude that a merger will result in a substantial prevention or lessening of competition (SPLC) solely on the basis of market concentration or market share, and introducing a rebuttable structural presumption that a merger will result in an SPLC if it results in an increase in market share above the 30% threshold
- Expressly including (i) impacts on labour, (ii) effects from increases in market share, and (iii) express or tacit coordination between competitors as factors to be considered in any merger review
- Allowing the Bureau to seek, and the Tribunal to grant, remedies that fully restore competition to the level that would have prevailed before the merger
- Extending the limitation period for the Bureau to challenge mergers that were not notified from one year to three years post-closing
- Including sales "into" Canada as part of the "size of transaction" notification threshold, thereby increasing the number of transactions subject to pre-merger notification
- Introducing civil penalties for failure to notify a notifiable transaction, including administrative monetary penalties (AMPs) of up to C$10,000 per day
- Preventing a merger from closing upon the Bureau filing an injunction application seeking more time to conduct the inquiry or challenging the merger until the Tribunal disposes of the injunction application
2. Deceptive Marketing
- Prohibiting "greenwashing" (i.e., making a representation about the environmental benefits of a business activity or a product that is not based on an adequate and proper test or internationally recognized methodology)
- Placing the onus on advertisers to establish the ordinary selling price of discounted products
3. Civil Collaborations
- Extending the Act's competitor collaboration provisions to apply retroactively, excluding agreements that have been terminated for more than three years
- Broadening the remedies that the Tribunal may order to include divestitures and AMPs up to the greater of (i) C$10-million (and C$15-million for subsequent violations) and (ii) three times the value of the benefit derived from the impugned agreement or, if that amount cannot be reasonably determined, 3% of the person's annual worldwide gross revenues
4. Private Access to the Tribunal
As of June 20, 2025:
- Introducing a new right for private parties to make an application to the Tribunal (with leave) concerning violations of the civil deceptive marketing and collaboration provisions
- Lowering the threshold for a private party to obtain leave from the Tribunal to bring an application by requiring the party to show either (i) that its application is in the public interest or (ii) that its business is substantially affected in part, rather than in whole (the latter for applications brought in respect of the Act's refusal to deal, exclusive dealing, market restriction, tied selling, abuse of dominance and collaboration provisions)
- Allowing the Tribunal to award a disgorgement remedy to successful private applicants in an amount up to the benefit derived from the refusal to deal, price maintenance, exclusive dealing, market restriction, tied selling, abuse of dominance and collaboration conduct
5. Other Important Changes
- Right to Repair: Expanding the Act's refusal to deal provisions to permit the Tribunal to order a supplier to provide a means of diagnosis or repair to customers or third parties such as diagnostic maintenance, repair information, diagnostic software, or tools and related documentation and parts
- Reprisal Actions: Empowering the Tribunal to award AMPs or issue prohibition orders where it is shown that a person penalized, punished, disciplined, harassed or disadvantaged another person because they cooperated with the Bureau
- Consent Agreement Breaches: Enabling the Bureau, outside of contempt proceedings, to apply to the Tribunal to enforce compliance with consent agreements, including awarding AMPs up to C$10,000 per day
Join us on June 25, 2024, where we will discuss recent amendments to the Act in our online event with the Business Council of Canada: The Brave New World of Competition Law: Understanding the Latest Changes to Canada's Competition Act.
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