In this series of blogs, we will explore some key legal considerations and reviews key developments in Canada during 2021 and reflects on their significance for 2022 and beyond.
First, the prospect of a real debate on substantial reform of
the Competition Act has gained momentum. Driven by
the divergence in Canada's approach to the enforcement of
buy-side agreements between competitors (such as
no-poach agreements) compared with some other jurisdictions,
and the Competition Bureau's (Bureau) recent experience in
litigating allegedly anti-competitive mergers where the
parties have invoked Canada's unique efficiencies
defence, the Bureau has joined other domestic stakeholders in
advocating for legislative reform. Second, in the meantime,
parties can expect the Bureau to take a harder line on merger
enforcement, particularly where parties look to close their
transaction prior to the Bureau concluding its review. Likewise,
national security review of transactions under the
Investment Canada Act has intensified in 2021, with
the government codifying in revised guidelines a more expansive
approach to its intervention policy that was introduced during
the COVID-19 pandemic.
Finally, through significant expansion in its budget and the imminent creation of a specialized digital economy branch, the Bureau continues to focus on digital enforcement, both in respect of abuse of dominance and deceptive marketing and misleading advertising. In a sign that the Bureau is looking to emulate peer agencies in other countries, it is pursuing investigations against several major technology companies. While cartel enforcement continues to focus on domestic cases, the Bureau is expected to scrutinize buy-side agreements carefully under the civil regime and is advocating to recriminalize these practices.
Reform is in the Air: Is the Competition Act Fit for (21st Century) Purpose?
Thirteen years after the last major competition policy debate in Canada led to a significant overhaul of the regime, several developments in 2021 have moved the conversation beyond specific enforcement priorities to a broader discussion on the legislative framework that underpins competition law enforcement in Canada. Key stakeholders in the federal Parliament and the Commissioner of Competition, Matthew Boswell, have indicated their support for a comprehensive review of the Competition Act, and in particular the tools it provides to the Bureau in the modern, increasingly digitalized economy.
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