Welcome to the December issue of Blakes Competitive Edge, a monthly publication of the Blakes Competition, Antitrust & Foreign Investment group. Blakes Competitive Edge provides an overview of recent developments in Canadian competition law, including updates on enforcement activity by the Canadian Competition Bureau (Bureau), recent initiatives and key trends.
Key Highlights
The number of completed merger reviews by the Bureau during COVID-19 remains significantly below 2019 levels (42 per cent decrease in May through November 2020, as compared to the same period in 2019); however there has been an uptick from the reduced activity levels seen earlier in the pandemic, with 66 merger reviews completed in July to November 2020 (13 per month) as compared to 23 merger reviews completed in Q2 2020 (7.7 per month), a 42 per cent increase in the monthly average of completed merger reviews since the beginning of Q3 2020
The Bureau issued a statement indicating that it will not assess buy-side agreements for the purchase of products or services (including employee no-poaching and wage-fixing agreements) under the criminal conspiracy provisions of the Competition Act, but may assess these types of agreements under the civil competitor collaboration provisions of the Competition Act
The Bureau reached a consent agreement with TRUE Sports in respect of deceptive marketing claims that were not sufficiently supported by testing
Merger Monitor
November 2020 Highlights
17 merger reviews completed
Primary industries: transportation and warehousing (24 per cent), mining, quarrying and oil and gas extraction (18 per cent), real estate and rental and leasing (18 per cent), and finance and insurance (12 per cent)
Zero consent agreements (remedies) filed
Eight transactions received an Advance Ruling Certificate (53 per cent), while nine transactions received a No Action Letter (47 per cent)
January – November 2020 Highlights
140 merger reviews completed
Primary industries: manufacturing (18 per cent), real estate and rental and leasing (16 per cent), finance and insurance (15 per cent), and mining, quarrying and oil and gas extraction (15 per cent)
Three consent agreements (remedy) required
65 transactions received an Advance Ruling Certificate (49 per cent), while 72 transactions received a No Action Letter (49 per cent)
Misleading Advertising Enforcement
On November 17, 2020, the Bureau announced that it reached a consent agreement with TRUE Sports Inc. to resolve performance claims made by the hockey equipment manufacturer about its True Dynamic 9 Pro hockey helmet, which gave the impression that it could reduce the risk of concussions without adequate testing to support those claims. The settlement includes an agreement by TRUE Sports to donate sports equipment worth C$100,000 to a charity supporting youth in sports, cease making all claims at issue, implement a compliance program to ensure that retailers do not make the unsupported claims, and pay C$20,000 to cover the cost of the Bureau’s investigation.
Bid-Rigging
On December 8, 2020, the Bureau announced that as part of a settlement with engineering firm CIMA+, CIMA+ has been ordered to pay C$3.2-million over the next four years for bid-rigging on municipal infrastructure contracts in Quebec. This is the sixth settlement resulting from the Bureau’s ongoing investigation, involving total payments of over C$12-million to date.
Non-Enforcement Activity
Bureau Hosts Final Panel of Digital Enforcement Summit 2020
On November 26, 2020, the Bureau hosted the fourth and final panel in its Digital Enforcement Summit 2020, which explored emerging approaches to case resolution and litigation with an emphasis on the digital economy and the evolving evidentiary burdens in court.
Bureau Releases Statement on Application of Competition Act to Buy-Side Agreements
On November 27, 2020, the Bureau released a statement on the application of the Competition Act to no-poaching, wage-fixing and other buy-side agreements. The statement indicates that the Bureau will not assess buy-side agreements for the purchase of products or services under section 45 of the Competition Act (criminal provision) but may assess buy-side agreements under section 90.1 of the Competition Act (civil provision). For more information, see our December 2020 Blakes Bulletin: Competition Bureau Guidance on Buy-Side Agreements and Focus on Economic Recovery.
Bureau Launches Survey for Experiences on Digital Health Care Services
On December 7, 2020, the Bureau launched an online survey to learn about Canadians’ experiences accessing and using digital health care services. In particular, the Bureau is looking to better understand the obstacles that may be impeding access to digital health care, or limiting innovation and choice, and to identify possible opportunities for change. The survey has been initiated in connection with the Bureau’s current market study of Canada’s health care sector, which was commenced in July 2020.
Speeches
November 25, 2020, the Commissioner of Competition (Commissioner), Matthew Boswell, provided remarks to the Canadian Federation of Independent Grocers.
November 25, 2020, the Commissioner provided remarks to the Canadian Club Toronto.
November 30, 2020, Josephine Palumbo, the International Consumer Protection and Enforcement Network (ICPEN) President 2020-2021 and Deputy Commissioner, Deceptive Marketing Practices Directorate at the Bureau provided remarks during the first ICPEN conference under the Canadian presidency.
December 3, 2020, the Commissioner appeared before the Standing Committee on Industry, Science and Technology where he made an opening statement.
Investment Canada Act
October 2020 Highlights
For non-cultural investments: zero reviewable investment approvals and 69 notifications filed (48 for acquisitions and 21 for establishment of a new Canadian business)
Country of origin of investor (non-cultural): U.S. (57 per cent), Sweden (nine per cent), China (four per cent) and Australia (four per cent)
January – October 2020 Highlights
For non-cultural investments: four reviewable investment approvals and 628 notifications filed (418 for acquisitions and 210 for establishment of new Canadian business)
For cultural investments: zero reviewable investment proposal approvals and 11 notifications (five for acquisitions and six for establishment of new Canadian business)
Country of origin of investor (non-cultural): U.S. (50 per cent), U.K. (nine per cent), Australia (four per cent), India (three per cent), France (three per cent), China (three per cent) and Germany (three per cent)
Blakes Notes
For more on recent trends and insights in Canadian competition law, view our November 2020 Five Under 5 Article: A Brief Look at Recent Canadian Competition Trends and Insights.
To read more thought leadership insights from the Competition, Antitrust & Foreign Investment group, please click here.
For the latest legal and business updates regarding COVID-19, visit our Resource Centre.
Contact Us
If you have any questions, please do not hesitate to contact your usual Blakes contact or any member of the Blakes Competition, Antitrust & Foreign Investment group.