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Guide to the 2022 amendments to the Competition Act

June 24, 2022

Important amendments to the Competition Act became law on June 23, 2022. This guide provides an overview of the most important changes to the law in the areas of fines and penalties, business collusion, drip pricing, abuse of dominance, merger review, and evidence gathering during investigations.

The guide is not a legal document and does not replace legal advice. The Competition Bureau will be reviewing and updating its enforcement guidance to ensure transparency and predictability for the business and legal communities.

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Introduction

The Government of Canada has made amendments to the Competition Act in 2022 as a preliminary phase in modernizing the Canada’s competition regime. The amendments fix certain loopholes in the law, tackle business practices harmful to workers and consumers, increase penalties and access to justice, and adapt the law to today's digital reality.

Increased fines and penalties

Fines and administrative monetary penalties play an important role in ensuring compliance with the Competition Act by providing a financial incentive for businesses to comply with the law.

Wage-fixing and no-poaching agreements between employers will be criminally prohibited

This is a new provision within the existing criminal conspiracy provisions of the Competition Act to protect workers from agreements between employers that fix wages and restrict job mobility (subsection 45(1.1)).

Drip pricing is explicitly recognized as a harmful business practice

The amendments add a new provision regarding drip pricing to both the civil and criminal prohibition on false or misleading representations (sections 52 and 74.01). Drip pricing involves offering a product or service at a price that is unattainable, because consumers must also pay additional non-government-imposed charges or fees to buy the product or service.

The Commissioner has successfully taken enforcement action against this practice using the general false or misleading representations provision of the Competition Act (section 74.01).

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Expanded list of factors to determine an impact on competition

The Competition Act contains lists of factors to be considered when assessing the competitive impact of mergers, business practices and competitor collaborations (subsections 79(4), 90.1(2) and section 93). These non-exhaustive lists have been expanded to include some that may arise in digital commerce, although they are applicable more broadly as well.

Abuse of dominance enforcement framework clarified

The amendments clarify the definition of an “anti-competitive act” for abuse of dominance (subsection 78(1)).

The Competition Act contains a non-exhaustive list of examples of business practices that may be considered under abuse of dominance.

Private access to the Competition Tribunal for abuse of dominance cases

Private access allows private parties to apply directly to the Competition Tribunal if they are directly and substantially affected by the conduct of another party. Private access is already available for some provisions of the Competition Act.

Expanded evidence-gathering powers

Fixed loopholes in the merger review notification requirements

This is a new provision in the Competition Act. Mergers that meet certain thresholds must be notified to the Commissioner before they are completed. The Commissioner reviews such transactions to determine whether they are likely to harm competition.

Clarifications to the merger review process

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