Budget Implementation Act, 2022, No. 1 (S.C. 2022, c. 10)
Full Document:
- HTMLFull Document: Budget Implementation Act, 2022, No. 1 (Accessibility Buttons available) |
- PDFFull Document: Budget Implementation Act, 2022, No. 1 [3560 KB]
Assented to 2022-06-23
PART 5Various Measures (continued)
DIVISION 15R.S., c. C-34; R.S., c. 19 (2nd Supp.), s. 19Competition Act (continued)
Amendments to the Act (continued)
257 (1) Subsections 45(2) and (3) of the Act are replaced by the following:
Marginal note:Conspiracies, agreements or arrangements regarding employment
(1.1) Every person who is an employer commits an offence who, with another employer who is not affiliated with that person, conspires, agrees or arranges
(a) to fix, maintain, decrease or control salaries, wages or terms and conditions of employment; or
(b) to not solicit or hire each other’s employees.
Marginal note:Penalty
(2) Every person who commits an offence under subsection (1) or (1.1) is guilty of an indictable offence and liable on conviction to imprisonment for a term not exceeding 14 years or to a fine in the discretion of the court, or to both.
Marginal note:Evidence of conspiracy, agreement or arrangement
(3) In a prosecution under subsection (1) or (1.1), the court may infer the existence of a conspiracy, agreement or arrangement from circumstantial evidence, with or without direct evidence of communication between or among the alleged parties to it, but, for greater certainty, the conspiracy, agreement or arrangement must be proved beyond a reasonable doubt.
(2) The portion of subsection 45(4) of the Act before paragraph (a) is replaced by the following:
Marginal note:Defence
(4) No person shall be convicted of an offence under subsection (1) or (1.1) in respect of a conspiracy, agreement or arrangement that would otherwise contravene that subsection if
(3) Subsection 45(7) of the Act is replaced by the following:
Marginal note:Common law principles — regulated conduct
(7) The rules and principles of the common law that render a requirement or authorization by or under another Act of Parliament or the legislature of a province a defence to a prosecution under subsection (1), as it read immediately before the coming into force of this section, continue in force and apply in respect of a prosecution under subsection (1) or (1.1).
258 Section 52 of the Act is amended by adding the following after subsection (1.2):
Marginal note:Drip pricing
(1.3) For greater certainty, the making of a representation of a price that is not attainable due to fixed obligatory charges or fees constitutes a false or misleading representation, unless the obligatory charges or fees represent only an amount imposed by or under an Act of Parliament or the legislature of a province.
259 Section 74.01 of the Act is amended by adding the following after subsection (1):
Marginal note:Drip pricing
(1.1) For greater certainty, the making of a representation of a price that is not attainable due to fixed obligatory charges or fees constitutes a false or misleading representation, unless the obligatory charges or fees represent only an amount imposed by or under an Act of Parliament or the legislature of a province.
260 Subparagraphs 74.1(1)(c)(i) and (ii) of the Act are replaced by the following:
(i) in the case of an individual, the greater of
(A) $750,000 and, for each subsequent order, $1,000,000, and
(B) three times the value of the benefit derived from the deceptive conduct, if that amount can be reasonably determined, or
(ii) in the case of a corporation, the greater of
(A) $10,000,000 and, for each subsequent order, $15,000,000, and
(B) three times the value of the benefit derived from the deceptive conduct, or, if that amount cannot be reasonably determined, 3% of the corporation’s annual worldwide gross revenues; and
261 (1) The portion of subsection 78(1) of the Act before paragraph (a) is replaced by the following:
Marginal note:Definition of anti-competitive act
78 (1) For the purposes of section 79, anti-competitive act means any act intended to have a predatory, exclusionary or disciplinary negative effect on a competitor, or to have an adverse effect on competition, and includes any of the following acts:
(2) Subsection 78(1) of the Act is amended by striking out “and” at the end of paragraph (h), by adding “and” at the end of paragraph (i) and by adding the following after paragraph (i):
(j) a selective or discriminatory response to an actual or potential competitor for the purpose of impeding or preventing the competitor’s entry into, or expansion in, a market or eliminating the competitor from a market.
262 (1) The portion of subsection 79(1) of the Act before paragraph (a) is replaced by the following:
Marginal note:Prohibition if abuse of dominant position
79 (1) If, on application by the Commissioner or a person granted leave under section 103.1, the Tribunal finds that
(2) Subsection 79(3.1) of the Act is 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 the greater of
(a) $10,000,000 and, for each subsequent order under either of those subsections, an amount not exceeding $15,000,000, and
(b) three times the value of the benefit derived from the anti-competitive practice, or, if that amount cannot be reasonably determined, 3% of the person’s annual worldwide gross revenues.
(3) Subsection 79(4) of the Act is replaced by the following:
Marginal note:Factors to be considered
(4) In determining, for the purposes of subsection (1), whether a practice has had, is having or is likely to have the effect of preventing or lessening competition substantially in a market, the Tribunal shall consider whether the practice is a result of superior competitive performance and may consider
(a) the effect of the practice on barriers to entry in the market, including network effects;
(b) the effect of the practice on price or non-price competition, including quality, choice or consumer privacy;
(c) the nature and extent of change and innovation in a relevant market; and
(d) any other factor that is relevant to competition in the market that is or would be affected by the practice.
(4) Section 79 of the Act is amended by adding the following after subsection (7):
Marginal note:Inferences
(8) In considering an application by a person granted leave under section 103.1, the Tribunal may not draw any inference from the fact that the Commissioner has or has not taken any action in respect of the matter raised by the application.
263 Subsection 90.1(2) of the Act is amended by striking out “and” after paragraph (g) and by adding the following after that paragraph:
(g.1) network effects within the market;
(g.2) whether the agreement or arrangement would contribute to the entrenchment of the market position of leading incumbents;
(g.3) any effect of the agreement or arrangement on price or non-price competition, including quality, choice or consumer privacy; and
264 Section 93 of the Act is amended by striking out “and” after paragraph (g) and by adding the following after that paragraph:
(g.1) network effects within the market;
(g.2) whether the merger or proposed merger would contribute to the entrenchment of the market position of leading incumbents;
(g.3) any effect of the merger or proposed merger on price or non-price competition, including quality, choice or consumer privacy; and
265 Paragraph 100(1)(b) of the Act is replaced by the following:
(b) the Tribunal finds, on application by the Commissioner, that the completion of the proposed merger would result in a contravention of section 114.
266 (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, 77 or 79
103.1 (1) Any person may apply to the Tribunal for leave to make an application under section 75, 76, 77 or 79. 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, 77 or 79, as the case may be, is sought.
(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, 77 or 79, as the case may be, is sought.
(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, 77 or 79.
(4) Subsection 103.1(7) of the Act is replaced by the following:
Marginal note:Granting leave
(7) The Tribunal may grant leave to make an application under section 75, 77 or 79 if it has reason to believe that the applicant is directly and substantially affected in the applicant’s business by any practice referred to in one of those sections that could be subject to an order under that section.
(5) Subsection 103.1(8) of the English version of the Act is replaced by the following:
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, 77 or 79 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.
(6) 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, 77 or 79.
267 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, 77 or 79, the Commissioner may intervene in the proceedings.
268 Subsection 104(1) of the Act is replaced by the following:
Marginal note:Interim order
104 (1) If an application has been made for an order under this Part, other than an interim order under section 100 or 103.3, the Tribunal, on application by the Commissioner or a person who has made an application under section 75, 76, 77 or 79, may issue any interim order that it considers appropriate, having regard to the principles ordinarily considered by superior courts when granting interlocutory or injunctive relief.
269 Subsection 106.1(1) of the Act is replaced by the following:
Marginal note:Consent agreement — parties to a private action
106.1 (1) If a person granted leave under section 103.1 makes an application to the Tribunal for an order under section 75, 76, 77 or 79 and the terms of the order are agreed to by the person in respect of whom the order is sought and consistent with the provisions of this Act, a consent agreement may be filed with the Tribunal for registration.
270 Section 108 of the Act is amended by adding the following after subsection (2):
Marginal note:Computation of time
(3) In this Part, a time period is calculated in accordance with sections 26 to 30 of the Interpretation Act except that the following days are also considered to be a holiday as defined in subsection 35(1) of that Act:
(a) Saturday;
(b) if Christmas Day falls on a Saturday or Sunday, the following Monday and Tuesday; and
(c) if another holiday falls on a Saturday or Sunday, the following Monday.
Marginal note:Submission after 5:00 p.m.
(4) For the purposes of this Part, anything submitted to the Commissioner after 5:00 p.m. (Eastern Time) is deemed to be received by the Commissioner on the next day that is not a holiday.
271 The Act is amended by adding the following after section 113:
Anti-avoidance
Marginal note:Application of sections 114 to 123.1
113.1 If a transaction or proposed transaction is designed to avoid the application of this Part, sections 114 to 123.1 apply to the substance of the transaction or proposed transaction.
272 Subsection 114(3) of the Act is replaced by the following:
Marginal note:Unsolicited bid
(3) If a proposed transaction is an unsolicited or hostile take-over bid in respect of an entity and the Commissioner receives prescribed information supplied under subsection (1) by a person who has commenced or has announced an intention to commence a take-over bid, the Commissioner shall, if he or she has not already received the prescribed information from the entity, immediately notify the entity that the Commissioner has received the prescribed information from that person and the entity shall supply the Commissioner with the prescribed information within 10 days after being so notified.
273 Paragraph 123(1)(a) of the English version of the Act is replaced by the following:
(a) 30 days after the day on which the information required under subsection 114(1) has been received by the Commissioner, if the Commissioner has not, within that time, required additional information to be supplied under subsection 114(2); or
274 Subsection 124.2(3) of the Act is replaced by the following:
Marginal note:Reference by agreement of parties to a private action
(3) A person granted leave under section 103.1 and the person against whom an order is sought under section 75, 76, 77 or 79 may by agreement refer to the Tribunal for determination any question of law, or mixed law and fact, in relation to the application or interpretation of Part VIII, if the Tribunal grants them leave. They must send a notice of their application for leave to the Commissioner, who may intervene in the proceedings.
- Date modified: