On July 10, 2019, Canada’s new Competition Bureau (Bureau) head articulated his top enforcement priorities in an interview sponsored by the American Bar Association (ABA), Section of Antitrust Law.
The digital economy, cartel enforcement and improved merger reviews should be top of mind for companies doing business in Canada, the Commissioner of Competition (Commissioner) said. Below are the details:
KEY TAKEAWAYS FOR BUSINESS
- Digital Economy. The Commissioner considers the digital economy to be a top enforcement priority. With the appointment of the Bureau’s Chief Digital Enforcement Officer and a challenge to a software merger earlier this month, the Bureau has signalled that innovation and the digital economy will be critical going forward.
- Data Analysis. The Bureau is using data analysis techniques in its investigations and enforcement decisions, such as to determine whether bidders have engaged in illegal coordination. The Bureau is also strengthening its ability to monitor the Internet for misleading advertising and to review documents and information during investigations.
- Cartel Detection. While the recently updated Immunity and Leniency Programs have not yet led to a prosecution, the Commissioner indicated that the programs have successfully attracted companies that are interested in immunity and leniency in exchange for cooperation in identifying and prosecuting companies involved in price-fixing and other anti-competitive conduct. The interplay between Canada’s rising use of class actions and these new programs remains to be seen.
- Merger Efficiencies. Canada has an efficiencies defence for strategic mergers in concentrated industries. The Commissioner indicated that the merging parties should provide extensive information about their businesses, integration plans and past integration success. The Commissioner will exercise his discretion to clear a merger based on the efficiencies defence, but only after being satisfied based on the evidence that the efficiencies are greater than and offset any anticompetitive effects.
The Commissioner indicated that he expects that merging parties will agree to a timing agreement under which parties agree not to close until the Bureau has had time to evaluate the efficiencies information and it will soon release a model form of timing agreement. There is of course no obligation to agree to give the Competition Bureau more time than provided for in the Competition Act, and the model form will not have the force of law, but it will provide a sense of the Bureau’s informal perspective on timing.
- Privilege Claims. The Bureau will increasingly look to the courts to determine the validity of privilege claims by a company during investigations. Accordingly, it is important for businesses to follow proper protocols for any communications involving legal advice, litigation and settlement matters.
- Merger Feedback. The Commissioner reaffirmed that Bureau officials will be empowered to provide views to merging parties earlier in the review process. The Commissioner cautioned that those views are likely to evolve as the review progresses.
Matthew Boswell was appointed Commissioner on March 5, 2019 for a five-year term. For a further discussion of the Commissioner’s enforcement priorities, see our May 2019 Blakes Bulletin: New Canadian Commissioner of Competition Sends Message of Active and Vigorous Enforcement.
Blakes Partner Rob Kwinter participated in the interview on behalf of the ABA. If you have any questions regarding these developments, please do not hesitate to contact your usual Blakes contact or any member of the Blakes Competition, Antitrust & Foreign Investment group.
Blakes and Blakes Business Class communications are intended for informational purposes only and do not constitute legal advice or an opinion on any issue. We would be pleased to provide additional details or advice about specific situations if desired.
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