Competition Act merger review, abuse of dominance, price-fixing conspiracies, deceptive marketing practices, and Competition Bureau enforcement for Ontario competition and commercial lawyers.
Canadian competition law is federal. The primary statute is the Competition Act (RSC 1985, c C-34), administered by the Competition Bureau (an independent law enforcement agency) and enforced before the Competition Tribunal (a specialized adjudicative body) and the Federal Court. The 2022 and 2024 amendments (Bill C-19 and Bill C-56) significantly strengthened the Competition Act — expanding abuse of dominance remedies, adding a drip pricing prohibition, and enabling structural merger remedies.
Ontario lawyers encounter competition law most often in: M&A transactions (merger notification); commercial agreements (distribution, franchise, licensing — ensuring no anti-competitive provisions); marketing and advertising review (deceptive practices); and regulatory matters where clients are under Bureau investigation.
| Offence | Type | Test | Penalties |
|---|---|---|---|
| Conspiracy — price-fixing (s.45) | Criminal — per se | Agreement to fix prices, allocate markets, or restrict output between competitors; no proof of harm required since 2010 | Individual: up to 14 years + fine; Corporation: up to $25M per count |
| Bid-rigging (s.47) | Criminal — per se | Agreement between bidders to submit pre-arranged bids or to refrain from bidding; tenderer not informed | Individual: up to 14 years + fine; Corporation: fine in discretion of court |
| Abuse of dominance (s.79) | Civil (Tribunal) | Dominant firm + practice of anti-competitive acts + SLCP (substantial lessening or prevention of competition) | Prohibition order; AMP up to $35M (corporate); structural remedies (divestiture) since 2024 |
| Deceptive marketing (s.74.01) | Civil reviewable | False or misleading representation material to consumers; drip pricing; performance claims; testimonials | Corporate: up to $10M first violation, $15M subsequent, or 3% of worldwide revenues |
| Misleading advertising — criminal (s.52) | Criminal | Knowingly or recklessly making a materially false or misleading representation | Summary conviction: up to $200,000 and/or 1 year; Indictment: fine + up to 14 years |
| Merger — substantial prevention or lessening of competition (s.92) | Civil (Tribunal) | Merger that prevents or lessens competition substantially in any market in Canada | Dissolution; divestiture; prohibition order; conditions on closing |
Determine whether transaction meets notification thresholds; assess competitive overlap between parties; consider whether Bureau pre-notification consultation is warranted for complex transactions
Submit prescribed information to Competition Bureau within prescribed timelines; both acquirer and target must file where threshold met; filing fee payable (currently $74,680 for standard notification)
Bureau has 30 days to review from filing; transaction cannot close during waiting period; Bureau may request supplementary information (SIR), which triggers a second 30-day period after SIR compliance
Bureau assesses competitive effects in relevant markets; defines product and geographic markets; assesses market shares, barriers to entry, competitive constraints, and efficiencies; contacts customers, competitors, and suppliers
Outcomes: (a) No-action letter (Bureau will not challenge); (b) Consent agreement — parties accept conditions (divestiture, behavioural remedies) to resolve concerns; (c) Application to Competition Tribunal to block transaction
Bureau applies to Tribunal under s.92 to challenge transaction; full evidentiary hearing; Tribunal may order dissolution, divestiture, or that merger not proceed; parties may argue efficiencies offset competitive harm (s.96)
An ARC is a binding commitment by the Commissioner not to challenge a specific transaction for 1 year. ARC applications can be filed before or alongside a notification. Where the Commissioner will not issue an ARC but has no immediate concerns, a "no-action letter" may be issued (non-binding). ARCs provide commercial certainty in complex transactions where competition concerns are unclear.
Not all competitor collaborations are anti-competitive. The Competition Act distinguishes between criminal conspiracies (s.45 — per se illegal) and strategic alliances or joint ventures that may be reviewable under s.90.1 (civil collaboration provisions) or the merger provisions.
The Competition Act prohibits both criminal (s.52 — knowing and reckless) and civil reviewable (s.74.01) deceptive marketing practices. Key Ontario advertising matters:
A transaction is notifiable when both the size-of-parties threshold ($400 million combined Canadian revenues/assets) and the size-of-transaction threshold ($93 million target Canadian revenues/assets, indexed annually) are met. Notifiable transactions cannot close until the 30-day waiting period expires or the Commissioner issues an ARC or no-action letter.
Under s.79 of the Competition Act, abuse of dominance requires: (1) substantial or complete control of a class of business; (2) a practice of anti-competitive acts; and (3) the practice has had or is likely to have the effect of preventing or lessening competition substantially. Since 2022, the Tribunal can impose administrative monetary penalties up to $35 million for corporate respondents.
Price-fixing conspiracies under s.45 are criminal per se offences since 2010. Penalties include: individual: up to 14 years imprisonment and/or a fine; corporation: up to $25 million per count. The Competition Bureau operates an Immunity Program allowing the first co-conspirator to self-report and cooperate to receive immunity from prosecution.
Amendments effective June 2022 added an express prohibition on drip pricing under s.74.01(1.1) — advertising a price for a product that does not include all mandatory fees or charges. Civil AMPs up to $10 million for first violations, $15 million for subsequent violations, or 3% of annual worldwide revenues. The Bureau has challenged airlines, event ticketing platforms, and online retailers.
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