Competition legislative reform dominated the 2023 policy agenda, with amendments to the Competition Act adopted just before year-end, and additional sweeping changes to the Competition Act and the Investment Canada Act’s national security regime currently before Parliament. Rarely before in Canada—if ever—has competition law policy captured such political attention. In parallel with the evolving policy landscape, enforcement of the existing competition law regime has been—in some areas—more assertive than in prior years. The year ahead promises to be just as eventful, with important developments affecting businesses and consumers across the country.

To help business leaders prepare for and effectively respond to these developments, McCarthy Tétrault’s Competition/Antitrust & Foreign Investment Group has released its Competition/Antitrust & Foreign Investment Outlook 2024.

The report provides unique insight into competition-related developments and includes reviews of the recent and proposed amendments to the Competition Act and the Investment Canada Act and their expected impact, recent significant decisions, including in competition class actions, what’s in the Competition Bureau’s sights for the year ahead, and more.

Chapter topics include the following:

• Competition Act Reform – Substantial Change on the Horizon
• Investment Canada Act: Brace Yourselves, Amendments Are (Still) Coming
• Competition Act Merger review – The Bureau’s Litigation Strategy Prevails
• Taking Aim at Concentration and Affordability – Sector Specific Developments
• Cartel Activity: False Dawn or New Age?
• Unilateral Conduct and Deceptive Marketing: Moved to the Back Burner?
• Competition Class Actions: A Deepening Line in the Sand

Read a snapshot from the Competition Act Reform chapter of the publication below:

1. Competition Act Reform – Substantial Change on the Horizon

With the ink barely dry on the 2022 Competition Act amendments, 2023 saw a continued push for even greater Canadian competition law reform. While this past year was largely consumed by further study and debate, it is coming to a close with the most substantial changes to the Competition Act in over a decade pending before Parliament. By the end of 2024, Canada’s competition law regime is likely to be dramatically reformed, with expanded private litigation, stronger civil conduct provisions, and a more expansive merger notification regime.

1. An Ambitious Review of the Competition Act

After enacting initial Competition Act amendments in June 2022, the government launched an expansive consultation on the future of competition policy in Canada in November 2022.

To initiate the consultation, Innovation Science and Economic Development Canada (“ISED”) published a discussion paper on potential reforms to the Competition Act’s merger review, unilateral conduct, competitor collaboration and deceptive marketing provisions, as well as to its administration and enforcement more broadly. In contrast to the 2022 amendments, which the government described as a targeted first step towards modernizing the Competition Act, the government set its current objective as more fundamental improvement to the Act’s framework.

The consultation ran through March 2023, receiving over 130 submissions from identified stakeholders and more than 400 responses from the general public, which collectively raised over 100 potential reform proposals. In a September 2023 report summarizing the feedback received, the government highlighted the absence of consensus on the path forward for Canadian competition policy, writing that:

ISED was informed both that the Act and its enforcement regime were toothless and outdated, but also that any attempts at modernization threatened to chill investment and innovation. The Act was, to some, glaringly inadequate when held up for international comparison, yet others insisted that it was exemplary and top-of-the-line when measured against Canada's foreign partners. Some groups explained that their members were suffering under the status quo, while others foretold negative economic consequences in the event that the status quo were abandoned.

The government concluded that the “task at hand is to consider how best to rebalance the regime to better limit concentration and deter anticompetitive practices, while avoiding overcorrection and preserving certainty in compliance.”

About McCarthy Tétrault’s Competition/Antitrust & Foreign Investment Group

Clients trust McCarthy Tétrault’s Competition/Antitrust & Foreign Investment Group with their most strategic and critical competition, foreign investment and national security matters, and foreign law firms trust us with their valued clients. Whether as advisors or as litigators, our team has earned a stellar reputation both nationally and internationally and works hard to maintain that reputation with every mandate. We pride ourselves on being practical, business friendly and responsive to clients’ timing and commercial requirements. Find out how we can help grow and defend your business. 

About McCarthy Tétrault

McCarthy Tétrault LLP provides a broad range of legal services, providing strategic and industry-focused advice and solutions for Canadian and international interests. The Firm has substantial presence in Canada’s major commercial centres as well as in New York and London.

Built on an integrated approach to the practice of law and delivery of innovative client services, the Firm brings its legal talent, industry insight and practice experience to help clients achieve the results that are important to them.

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