Recent Developments in Canadian Competition Law

The Competition Bureau (Bureau) recently released updated Abuse of Dominance Enforcement Guidelines (AOD Guidelines), which provide insight into the Bureau’s approach to abuse of dominance matters, and Intellectual Property Enforcement Guidelines (IPEGs) clarifying the Bureau’s approach to conducting investigations of alleged anti-competitive activities that involve intellectual property under the Competition Act (Act). The Bureau also provided an update to its Immunity and Leniency Programs and the filing fee for merger reviews will increase on April 1, 2019.

UPDATED GUIDANCE ON ABUSE OF DOMINANCE AND IP ENFORCEMENT

While not legally binding, the AOD Guidelines and the IPEGs are a welcome update to the Bureau’s enforcement approach in abuse of dominance and IP matters. That said, there remain unanswered questions regarding the future role of abuse of dominance in a rapidly evolving digital economy and how the Bureau will apply its framework in the circumstances of any particular case. Further, while the updates to the IPEGs represent the Bureau’s second revision to its substantive enforcement policies in IP since 2000, the updates are modest and are unlikely to substantially change the Bureau’s approach in matters involving IP.

The AOD Guidelines have been substantially expanded, providing more detail on the Bureau’s enforcement approach, including:

• How the Bureau will assess abuse in the digital economy, including the Bureau’s approach to abuse in network industries and multi-sided markets
• When the Bureau will seek administrative monetary penalties (AMP), including ensuring that AMPs are set at levels that do not become the “cost of doing business” for a dominant firm to engage in anti-competitive conduct
• How the Bureau will apply recent guidance from the courts regarding conduct that may constitute an “abuse of dominance” under Canadian law, including conduct by firms that affects a market in which they do not compete.

Similarly, the updated IPEGs largely reflect recent case law developments while also addressing changes to Canadian regulations governing the early introduction of generic pharmaceuticals, including:

• How the Bureau will apply the general provisions of the Act when IP rights are at issue and its typical approach not to apply the general provisions to the “mere exercise” of IP rights alone.
• How the Bureau will analyze settlements between branded and generic pharmaceutical companies under the Patented Medicines Notice of Compliance (PMNOC) regulations.

REVISED IMMUNITY AND LENIENCY PROGRAMS

On March 15, 2019, the Bureau revised its Immunity and Leniency Programs to clarify that notwithstanding any representations made by the Bureau or others about confidentiality of identity and information, nothing in the Immunity and Leniency Programs confers confidential informer status to a cooperating party, and the identity of a cooperating party and any information that might tend to identify them are not subject to informer privilege.

For more information on the Bureau’s Immunity and Leniency Programs, please see our November 2017 and May 2018 Blakes Bulletins: Competition Bureau Announces Proposed Changes to Immunity Program and Competition Law Compliance: Canada’s Competition Bureau Releases New Draft Immunity and Leniency Programs.

INCREASED FILING FEE FOR MERGER REVIEWS

Pursuant to subsection 17(1) of the Service Fees Act, the filing fee for notifiable merger transactions and merger reviews will increase from C$72,000 to C$73,584. The new filing fee will come into effect on April 1, 2019.

If you have any questions regarding these developments, please do not hesitate to contact your usual Blakes contact or any member of the Competition, Antitrust & Foreign Investment group.