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Significant Developments in Canadian Competition Law and Policy since March 2009

Significant developments in Canadian competition and foreign investment law and policy since March 2009 include:

  • The most significant amendments to the Competition Act in its history, including the introduction of a per se conspiracy offence and dual-track criminal/civil regime in the area of competitor agreements, the decriminalization of predatory pricing, price maintenance and price discrimination, and the creation of a reviewable price maintenance provision. Bill C-10 also increased penalties for conspiracy, obstruction and bid-rigging, and introduced significant new administrative monetary penalties (AMPs) for abuse of dominance, as well as higher maximum AMPs for civil deceptive marketing practices. Bill C-10 brought Canada’s merger review process more in line with that of the U.S., and introduced substantial changes to the Investment Canada Act such as a new national security review mechanism and revised thresholds for review.
  • The appointment of a new Commissioner of Competition, Melanie Aitken, in August 2009.
  • Issuance of number of significant policies by the Competition Bureau including the Competitor Collaboration Guidelines, the Merger Review Process Guidelines, and the Leniency Program Bulletin.
  • A number of consent agreements between the Bureau and merging parties requiring divestitures in transactions, and a number of Supplementary Information Requests (SIRs) under the new merger review provisions.
  • The first-ever legal action against a foreign investor for failing to comply with undertakings given as a condition of investment approval.
  • A number of charges laid and/or pleas entered in relation to price-fixing in retail gas in Québec, air cargo, and hydrogen peroxide.
  • The Bureau’s initiation of an abuse of dominance application against the Canadian Real Estate Association, and a subsequent negotiated agreement resolving the Bureau’s concerns.
  • Significant criminal and civil enforcement activity in the area of false and misleading advertising.
  • An apparent lowering of the threshold for class certification in competition class actions in British Columbia and Ontario.

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