Taking the time to study proposed amendments to the Competition Act

The Competition Law and Foreign Investment Review Section of the Canadian Bar Association, in a letter to the Standing Senate Committee on National Finance, urges Parliament to allow for sufficient time for a thorough study of Bill C-59, Fall Economic Statement Implementation Act, 2023, which amends the Competition Act.

The Section notes the Competition Act was recently amended when Bill C-56, An Act to amend the Excise Tax Act and the Competition Act received Royal Assent on December 15, 2023. In an earlier and comprehensive submission on Bill C-56, the CBA Section made “12 balanced and thoughtful recommendations based on decades of practitioners’ experience advising domestic and foreign businesses on competition law, across various sectors of the economy.” Those recommendations favoured certainty, transparency and predictability to minimize compliance costs for Canadian businesses.

The Section did not comment on the Bill’s significant changes to the abuse of dominance provisions because those amendments were not in Bill C-56 when it was tabled. They were introduced less than a week before the report stage was completed in the House of Commons and only one day before Bill C-59 was tabled.

“While broad high-level public consultations preceded the introduction of Bill C-56 and Bill C-59,” the letter says, “there has been little debate on specific legislative proposals during the parliamentary process.” This led to a complaint from the Senate National Finance Committee that it had only had “a very limited time to conduct its study of the bill” and was “prevented from thoroughly studying the bill and properly performing its duties.”

The CBA Section asks for enough time to study Bill C-59 properly, given its important implications across the economy. “Parliamentary debates and committee studies are essential because they inform eventual judicial interpretation of the resulting legislation. This is particularly relevant when new concepts are introduced in the statutory framework,” it writes.

Proposed amendments to Bill C-59

The CBA Section offers the recommendations to improve Bill C-59, summarized here:

1. Section 79(4.1) will only apply to conduct under section 78(1)(k) that has occurred one year after Bill C-59 receives Royal Assent.
2. Remove the Competition Tribunal’s ability to order administrative monetary penalties (AMPs) or private disgorgement payment under section 90.1(1).
3. Alternatively, amend sections 90.1(1.3) and (10.1) so that AMPs and private payment for contraventions of section 90.1(1) can only be ordered if the Tribunal finds that a significant purpose of the agreement or arrangement, or any part of it, is to prevent or lessen competition in any market or, at a minimum, amend Bill C-59 to include a transition period making section 90.1(1.3) only applicable one year after Bill C-59 receives Royal Assent.

Clarify that AMPs or private disgorgement payment is not available for agreements that are reviewable as “mergers” under section 92 of the Competition Act.