Budget Implementation Act, 2009 (S.C. 2009, c. 2)
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Assented to 2009-03-12
PART 12R.S., c. C-34; R.S., c. 19 (2nd Supp.), s. 19COMPETITION ACT
Amendments to the Act
Marginal note:2000, c. 15, s. 13(2)
427. (1) Subsection 78(1) of the Act is amended by adding the word “and” at the end of paragraph (h) and by repealing paragraphs (j) and (k).
Marginal note:2000, c. 15, s. 13(3)
(2) Subsection 78(2) of the Act is repealed.
Marginal note:2002, c. 16, s. 11.4
428. (1) Subsections 79(3.1) to (3.3) of the Act are replaced by the following:
Marginal note:Administrative monetary penalty
(3.1) If the Tribunal makes an order against a person under subsection (1) or (2), it may also order them to pay, in any manner that the Tribunal specifies, an administrative monetary penalty in an amount not exceeding $10,000,000 and, for each subsequent order under either of those subsections, an amount not exceeding $15,000,000.
Marginal note:Aggravating or mitigating factors
(3.2) In determining the amount of an administrative monetary penalty, the Tribunal shall take into account any evidence of the following:
(a) the effect on competition in the relevant market;
(b) the gross revenue from sales affected by the practice;
(c) any actual or anticipated profits affected by the practice;
(d) the financial position of the person against whom the order is made;
(e) the history of compliance with this Act by the person against whom the order is made; and
(f) any other relevant factor.
Marginal note:Purpose of order
(3.3) The purpose of an order made against a person under subsection (3.1) is to promote practices by that person that are in conformity with the purposes of this section and not to punish that person.
Marginal note:R.S., c. 19 (2nd Supp.), s. 45
(2) Subsection 79(7) of the Act is replaced by the following:
Marginal note:Where proceedings commenced under section 45, 49, 76, 90.1 or 92
(7) No application may be made under this section against a person on the basis of facts that are the same or substantially the same as the facts on the basis of which
(a) proceedings have been commenced against that person under section 45 or 49; or
(b) an order against that person is sought by the Commissioner under section 76, 90.1 or 92.
Marginal note:R.S., c. 19 (2nd Supp.), s. 45
429. Section 90 of the Act is replaced by the following:
Marginal note:Non-application of sections 45, 77 and 90.1
90. Section 45, section 77 as it applies to exclusive dealing, and section 90.1 do not apply in respect of a specialization agreement, or any modification of such an agreement, that is registered.
Agreements or Arrangements that Prevent or Lessen Competition Substantially
Marginal note:Order
90.1 (1) If, on application by the Commissioner, the Tribunal finds that an agreement or arrangement — whether existing or proposed — between persons two or more of whom are competitors prevents or lessens, or is likely to prevent or lessen, competition substantially in a market, the Tribunal may make an order
(a) prohibiting any person — whether or not a party to the agreement or arrangement — from doing anything under the agreement or arrangement; or
(b) requiring any person — whether or not a party to the agreement or arrangement — with the consent of that person and the Commissioner, to take any other action.
Marginal note:Factors to be considered
(2) In deciding whether to make the finding referred to in subsection (1), the Tribunal may have regard to the following factors:
(a) the extent to which foreign products or foreign competitors provide or are likely to provide effective competition to the businesses of the parties to the agreement or arrangement;
(b) the extent to which acceptable substitutes for products supplied by the parties to the agreement or arrangement are or are likely to be available;
(c) any barriers to entry into the market, including
(i) tariff and non-tariff barriers to international trade,
(ii) interprovincial barriers to trade, and
(iii) regulatory control over entry;
(d) any effect of the agreement or arrangement on the barriers referred to in paragraph (c);
(e) the extent to which effective competition remains or would remain in the market;
(f) any removal of a vigorous and effective competitor that resulted from the agreement or arrangement, or any likelihood that the agreement or arrangement will or would result in the removal of such a competitor;
(g) the nature and extent of change and innovation in any relevant market; and
(h) any other factor that is relevant to competition in the market that is or would be affected by the agreement or arrangement.
Marginal note:Evidence
(3) For the purpose of subsections (1) and (2), the Tribunal shall not make the finding solely on the basis of evidence of concentration or market share.
Marginal note:Exception where gains in efficiency
(4) The Tribunal shall not make an order under subsection (1) if it finds that the agreement or arrangement has brought about or is likely to bring about gains in efficiency that will be greater than, and will offset, the effects of any prevention or lessening of competition that will result or is likely to result from the agreement or arrangement, and that the gains in efficiency would not have been attained if the order had been made or would not likely be attained if the order were made.
Marginal note:Restriction
(5) For the purposes of subsection (4), the Tribunal shall not find that the agreement or arrangement has brought about or is likely to bring about gains in efficiency by reason only of a redistribution of income between two or more persons.
Marginal note:Factors to be considered
(6) In deciding whether the agreement or arrangement is likely to bring about the gains in efficiency described in subsection (4), the Tribunal shall consider whether such gains will result in
(a) a significant increase in the real value of exports; or
(b) a significant substitution of domestic products for imported products.
Marginal note:Exception
(7) Subsection (1) does not apply if the agreement or arrangement is entered into, or would be entered into, only by companies each of which is, in respect of every one of the others, an affiliate.
Marginal note:Exception
(8) Subsection (1) does not apply if the agreement or arrangement relates only to the export of products from Canada, unless the agreement or arrangement
(a) has resulted in or is likely to result in a reduction or limitation of the real value of exports of a product;
(b) has restricted or is likely to restrict any person from entering into or expanding the business of exporting products from Canada; or
(c) has prevented or lessened or is likely to prevent or lessen competition substantially in the supply of services that facilitate the export of products from Canada.
Marginal note:Exception
(9) The Tribunal shall not make an order under subsection (1) in respect of
(a) an agreement or arrangement between federal financial institutions, as defined in subsection 49(3), in respect of which the Minister of Finance has certified to the Commissioner
(i) the names of the parties to the agreement or arrangement, and
(ii) the Minister of Finance’s request for or approval of the agreement or arrangement for the purposes of financial policy;
(b) an agreement or arrangement that constitutes a merger or proposed merger under the Bank Act, the Cooperative Credit Associations Act, the Insurance Companies Act or the Trust and Loan Companies Act in respect of which the Minister of Finance has certified to the Commissioner
(i) the names of the parties to the agreement or arrangement, and
(ii) the Minister of Finance’s opinion that the merger is in the public interest, or that it would be in the public interest, taking into account any terms and conditions that may be imposed under those Acts; or
(c) an agreement or arrangement that constitutes a merger or proposed merger approved under subsection 53.2(7) of the Canada Transportation Act in respect of which the Minister of Transport has certified to the Commissioner the names of the parties to the agreement or arrangement.
Marginal note:Where proceedings commenced under section 45, 49, 76, 79 or 92
(10) No application may be made under this section against a person on the basis of facts that are the same or substantially the same as the facts on the basis of which
(a) proceedings have been commenced against that person under section 45 or 49; or
(b) an order against that person is sought by the Commissioner under section 76, 79 or 92.
Definition of “competitor”
(11) In subsection (1), “competitor” includes a person who it is reasonable to believe would be likely to compete with respect to a product in the absence of the agreement or arrangement.
Marginal note:R.S., c. 19 (2nd Supp.), s. 45
430. Sections 97 and 98 of the Act are replaced by the following:
Marginal note:Limitation period
97. No application may be made under section 92 in respect of a merger more than one year after the merger has been substantially completed.
Marginal note:Where proceedings commenced under section 45, 49, 79 or 90.1
98. No application may be made under section 92 against a person on the basis of facts that are the same or substantially the same as the facts on the basis of which
(a) proceedings have been commenced against that person under section 45 or 49; or
(b) an order against that person is sought under section 79 or 90.1.
Marginal note:2002, c. 16, s. 12
431. (1) Subsections 103.1(1) and (2) of the Act are replaced by the following:
Marginal note:Leave to make application under section 75, 76 or 77
103.1 (1) Any person may apply to the Tribunal for leave to make an application under section 75, 76 or 77. The application for leave must be accompanied by an affidavit setting out the facts in support of the person’s application under that section.
Marginal note:Notice
(2) The applicant must serve a copy of the application for leave on the Commissioner and any person against whom the order under section 75, 76 or 77, as the case may be, is sought.
Marginal note:2002, c. 16, s. 12
(2) Paragraph 103.1(3)(b) of the Act is replaced by the following:
(b) was the subject of an inquiry that has been discontinued because of a settlement between the Commissioner and the person against whom the order under section 75, 76 or 77, as the case may be, is sought.
Marginal note:2002, c. 16, s. 12
(3) Subsection 103.1(4) of the Act is replaced by the following:
Marginal note:Application discontinued
(4) The Tribunal shall not consider an application for leave respecting a matter described in paragraph (3)(a) or (b) or a matter that is the subject of an application already submitted to the Tribunal by the Commissioner under section 75, 76 or 77.
Marginal note:2002, c. 16, s. 12
(4) Subsection 103.1(8) of the Act is replaced by the following:
Marginal note:Granting leave to make application under section 76
(7.1) The Tribunal may grant leave to make an application under section 76 if it has reason to believe that the applicant is directly affected by any conduct referred to in that section that could be subject to an order under that section.
Marginal note:Time and conditions for making application
(8) The Tribunal may set the time within which and the conditions subject to which an application under section 75, 76 or 77 must be made. The application must be made no more than one year after the practice or conduct that is the subject of the application has ceased.
Marginal note:2002, c. 16, s. 12
(5) Subsection 103.1(10) of the Act is replaced by the following:
Marginal note:Limitation
(10) The Commissioner may not make an application for an order under section 75, 76, 77 or 79 on the basis of the same or substantially the same facts as are alleged in a matter for which the Tribunal has granted leave under subsection (7) or (7.1), if the person granted leave has already applied to the Tribunal under section 75, 76 or 77.
Marginal note:2002, c. 16, s. 12
432. Section 103.2 of the Act is replaced by the following:
Marginal note:Intervention by Commissioner
103.2 If a person granted leave under subsection 103.1(7) or (7.1) makes an application under section 75, 76 or 77, the Commissioner may intervene in the proceedings.
Marginal note:2000, c. 15, s. 15; 2002, c. 16, s. 13.1; 2003, c. 22, par. 224(z.18)(E)
433. Section 104.1 of the Act is repealed.
Marginal note:2002, c. 16, s. 14
434. Subsection 105(1) of the Act is replaced by the following:
Marginal note:Consent agreement
105. (1) The Commissioner and a person in respect of whom the Commissioner has applied or may apply for an order under this Part, other than an interim order under section 103.3, may sign a consent agreement.
Marginal note:2002, c. 16, s. 14
435. The portion of subsection 106(1) of the Act before paragraph (a) is replaced by the following:
Marginal note:Rescission or variation of consent agreement or order
106. (1) The Tribunal may rescind or vary a consent agreement or an order made under this Part other than an order under section 103.3 or a consent agreement under section 106.1, on application by the Commissioner or the person who consented to the agreement, or the person against whom the order was made, if the Tribunal finds that
Marginal note:R.S., c. 19 (2nd Supp.), s. 45; 1999, c. 2, s. 27
436. Subsections 110(2) to (6) of the Act are replaced by the following:
Marginal note:Acquisition of assets
(2) Subject to sections 111 and 113, this Part applies in respect of a proposed acquisition of any of the assets in Canada of an operating business if the aggregate value of those assets, determined as of the time and in the manner that is prescribed, or the gross revenues from sales in or from Canada generated from those assets, determined for the annual period and in the manner that is prescribed, would exceed the amount determined under subsection (7) or (8), as the case may be.
Marginal note:Acquisition of shares
(3) Subject to sections 111 and 113, this Part applies in respect of a proposed acquisition of voting shares of a corporation that carries on an operating business or controls a corporation that carries on an operating business
(a) if
(i) the aggregate value of the assets in Canada, determined as of the time and in the manner that is prescribed, that are owned by the corporation or by corporations controlled by that corporation, other than assets that are shares of any of those corporations, would exceed the amount determined under subsection (7) or (8), as the case may be, or
(ii) the gross revenues from sales in or from Canada, determined for the annual period and in the manner that is prescribed, generated from the assets referred to in subparagraph (i) would exceed the amount determined under subsection (7) or (8), as the case may be; and
(b) if, as a result of the proposed acquisition of the voting shares, the person or persons acquiring the shares, together with their affiliates, would own voting shares of the corporation that in the aggregate carry more than the following percentages of the votes attached to all the corporation’s outstanding voting shares:
(i) 20%, if any of the corporation’s voting shares are publicly traded,
(ii) 35%, if none of the corporation’s voting shares are publicly traded, or
(iii) 50%, if the person or persons already own more than the percentage set out in subparagraph (i) or (ii), as the case may be, before the proposed acquisition.
Marginal note:Amalgamation
(4) Subject to subsection (4.1) and section 113, this Part applies in respect of a proposed amalgamation of two or more corporations if one or more of those corporations carries on an operating business, or controls a corporation that carries on an operating business, where
(a) the aggregate value of the assets in Canada, determined as of the time and in the manner that is prescribed, that would be owned by the continuing corporation that would result from the amalgamation or by corporations controlled by the continuing corporation, other than assets that are shares of any of those corporations, would exceed the amount determined under subsection (7) or (8), as the case may be; or
(b) the gross revenues from sales in or from Canada, determined for the annual period and in the manner that is prescribed, generated from the assets referred to in paragraph (a) would exceed the amount determined under subsection (7) or (8), as the case may be.
Marginal note:General limit relating to parties to an amalgamation
(4.1) This Part does not apply in respect of a proposed amalgamation of two or more corporations if one or more of those corporations carries on an operating business or controls a corporation that carries on an operating business, unless each of at least two of the amalgamating corporations, together with its affiliates,
(a) has assets in Canada, determined as of the time and in the manner that is prescribed, that exceed in aggregate value the amount determined under subsection (7) or (8), as the case may be; or
(b) has gross revenues from sales in, from or into Canada, determined for the annual period and in the manner that is prescribed, that exceed in aggregate value the amount determined under subsection (7) or (8), as the case may be.
Marginal note:Combination
(5) Subject to sections 112 and 113, this Part applies in respect of a proposed combination of two or more persons to carry on business otherwise than through a corporation if one or more of those persons proposes to contribute to the combination assets that form all or part of an operating business carried on by those persons, or corporations controlled by those persons, and if
(a) the aggregate value of the assets in Canada, determined as of the time and in the manner that is prescribed, that are the subject-matter of the combination would exceed the amount determined under subsection (7) or (8), as the case may be; or
(b) the gross revenues from sales in or from Canada, determined for the annual period and in the manner that is prescribed, generated from the assets referred to in paragraph (a) would exceed the amount determined under subsection (7) or (8), as the case may be.
Marginal note:Combination
(6) Subject to sections 111, 112 and 113, this Part applies in respect of a proposed acquisition of an interest in a combination that carries on an operating business otherwise than through a corporation
(a) if
(i) the aggregate value of the assets in Canada, determined as of the time and in the manner that is prescribed, that are the subject-matter of the combination would exceed the amount determined under subsection (7) or (8), as the case may be, or
(ii) the gross revenues from sales in or from Canada, determined for the annual period and in the manner that is prescribed, generated from the assets referred to in subparagraph (i) would exceed the amount determined under subsection (7) or (8), as the case may be; and
(b) if, as a result of the proposed acquisition of the interest, the person or persons acquiring the interest, together with their affiliates, would hold an aggregate interest in the combination that entitles the person or persons to receive more than 35% of the profits of the combination, or more than 35% of its assets on dissolution, or, if the person or persons acquiring the interest are already so entitled, to receive more than 50% of such profits or assets.
Marginal note:Amount for notification
(7) In the year in which this subsection comes into force, the amount for the purposes of subsections (2) to (6) is $70,000,000.
Marginal note:Amount for notification — subsequent years
(8) In any year following the year in which subsection (7) comes into force, the amount for the purposes of any of subsections (2) to (6) is
(a) any amount that is prescribed for that subsection; or
(b) if no amount has been prescribed for that subsection,
(i) the amount determined by the Minister in January of that year by rounding off to the nearest million dollars the amount arrived at by using the formula
A × (B / C)
where
- A
- is the amount for the previous year,
- B
- is the average of the Nominal Gross Domestic Products at market prices for the most recent four consecutive quarters, and
- C
- is the average of the Nominal Gross Domestic Products at market prices for the four consecutive quarters for the comparable period in the year preceding the year used in calculating B, or
(ii) until the Minister has published under subsection (9) an amount for that year determined under subparagraph (i), if the Minister does so at all, the amount for that subsection for the previous year.
Marginal note:Publication in Canada Gazette
(9) As soon as possible after determining the amount for any particular year, the Minister shall publish the amount in the Canada Gazette.
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