Fall Economic Statement Implementation Act, 2023 (S.C. 2024, c. 15)

• 245 (1) Paragraph 76(11)(b) of the Act is replaced by the following:

  • (b) an order against that person has been made under section 79 or 90.1.

• (2) Section 76 of the Act is amended by adding the following after subsection (11):

  • Marginal note:Additional order — person granted leave

    (11.1) If the Tribunal makes an order under subsection (2) as the result of an application by a person granted leave under section 103.1, it may also order the person against whom the order is made to pay an amount, not exceeding the value of the benefit derived from the conduct that is the subject of the order, to be distributed among the applicant and any other person affected by the conduct, in any manner that the Tribunal considers appropriate.

  • Marginal note:Implementation of the order

    (11.2) The Tribunal may specify in an order made under subsection (11.1) any term that it considers necessary for the order’s implementation, including any term referred to in any of paragraphs 75(1.3)(a) to (g).

246 Subsection 77(3.1) of the Act is replaced by the following:

• 247 (1) Subsection 79(3.2) of the Act is amended by adding the following after paragraph (d):

  • (d.1) the amount that the person against whom the order is made is required to pay under an order made under subsection (4.1);

• (2) Section 79 of the Act is amended by adding the following after subsection (4):

  • Marginal note:Additional order — person granted leave

    (4.1) If, as the result of an application by a person granted leave under section 103.1, the Tribunal makes an order under subsection (1) or (2), it may also order the person against whom the order is made to pay an amount, not exceeding the value of the benefit derived from the practice that is the subject of the order, to be distributed among the applicant and any other person affected by the practice, in any manner that the Tribunal considers appropriate.

  • Marginal note:Implementation of the order

    (4.2) The Tribunal may specify in an order made under subsection (4.1) any term that it considers necessary for the order’s implementation, including any term referred to in any of paragraphs 75(1.3)(a) to (g).

• (3) Paragraph 79(7)(b) of the Act is replaced by the following:

  • (b) an order against that person has been made under section 76, 90.1 or 92.

• 248 (1) The portion of subsection 90.1(1) of the Act before paragraph (a) is replaced by the following:

  Marginal note:Order

  • 90.1 (1) If, on application by the Commissioner, the Tribunal finds that an agreement or arrangement or a proposed agreement or arrangement between persons of whom two or more are competitors prevents or lessens, has prevented or lessened or is likely to prevent or lessen competition substantially in a market, the Tribunal may make an order

• (2) The portion of subsection 90.1(1) of the Act before paragraph (a) is replaced by the following:

  Marginal note:Order

  • 90.1 (1) If, on application by the Commissioner or a person granted leave under section 103.1, the Tribunal finds that an agreement or arrangement or a proposed agreement or arrangement between persons of whom two or more are competitors prevents or lessens, has prevented or lessened or is likely to prevent or lessen competition substantially in a market, the Tribunal may make an order

• (3) Section 90.1 of the Act is amended by adding the following after subsection (1):

  • Marginal note:Additional or alternative order

    (1.1) If, on an application under subsection (1), the Tribunal finds that an agreement or arrangement has had or is having the effect of preventing or lessening competition substantially in a market and that an order under subsection (1) is not likely to restore competition in that market, the Tribunal may, in addition to or in lieu of making an order under subsection (1), make an order directing any or all the persons against whom an order is sought to take actions, including the divestiture of assets or shares, that are reasonable and as are necessary to overcome the effects of the agreement or arrangement in that market.

  • Marginal note:Limitation

    (1.2) In making an order under subsection (1.1), the Tribunal shall make the order in such terms as will in its opinion interfere with the rights of any person to whom the order is directed or any other person affected by it only to the extent necessary to achieve the purpose of the order.

  • Marginal note:Administrative monetary penalty

    (1.3) If the Tribunal makes an order against a person under subsection (1) or (1.1), 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 agreement or arrangement, or, if that amount cannot be reasonably determined, 3% of the person’s annual worldwide gross revenues.

  • Marginal note:Aggravating or mitigating factors

    (1.4) 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 agreement or arrangement;

    • (c) any actual or anticipated profits affected by the agreement or arrangement;

    • (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

    (1.5) The purpose of an order made against a person under subsection (1.3) is to promote practices by that person that are in conformity with the purposes of this section and not to punish that person.

• (4) Subsection 90.1(1.4) of the Act is amended by adding the following after paragraph (d):

  • (d.1) any amount that the person against whom the order is made is required to pay under an order made under subsection (10.1);

• (5) Section 90.1 of the Act is amended by adding the following after subsection (9):

  • Marginal note:Limitation period

    (9.1) No application may be made under this section in respect of an agreement or arrangement that has been terminated for more than three years.

  • Marginal note:Unpaid monetary penalty

    (9.2) The administrative monetary penalty imposed on a person under subsection (1.3) is a debt due to His Majesty in right of Canada and may be recovered as such from that person in a court of competent jurisdiction.

• (6) Paragraph 90.1(10)(b) of the Act is replaced by the following:

  • (b) an order against that person has been made under section 76, 79 or 92.

• (7) Section 90.1 of the Act is amended by adding the following after subsection (10):

  • Marginal note:Additional order — person granted leave

    (10.1) If the Tribunal makes an order under subsection (1) as the result of an application by a person granted leave under section 103.1, it may also order the person against whom the order is made to pay an amount, not exceeding the value of the benefit derived from the conduct that is the subject of the order, to be distributed among the applicant and any other person affected by the conduct, in any manner that the Tribunal considers appropriate.

  • Marginal note:Implementation of the order

    (10.2) The Tribunal may specify in an order made under subsection (10.1) any term that it considers necessary for the order’s implementation, including any term referred to in any of paragraphs 75(1.3)(a) to (g).

  • Marginal note:Inferences

    (10.3) 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.

• 249 (1) Paragraphs 92(1)(b) and (c) of the Act are replaced by the following:

  • (b) among the sources from which a trade, industry or profession obtains a product, including labour,

  • (c) among the outlets through which a trade, industry or profession disposes of a product, including labour, or

• (1.1) The portion of paragraph 92(1)(e) of the Act before subparagraph (i) is replaced by the following:

  • (e) in the case of a completed merger, in order to restore competition to the level that would have prevailed but for the merger, order any party to the merger or any other person

• (1.2) The portion of paragraph 92(1)(f) of the Act before subparagraph (i) is replaced by the following:

  • (f) in the case of a proposed merger, in order to preserve the level of competition that would prevail but for the merger, make an order directed against any party to the proposed merger or any other person

• (1.3) Clause 92(1)(f)(iii)(A) of the Act is replaced by the following:

  • (A) prohibiting the person against whom the order is directed, should the merger or part thereof be completed, from doing any act or thing the prohibition of which the Tribunal determines to be necessary to ensure that the merger or part thereof does not prevent or lessen competition, or

• (2) Subsection 92(2) of the Act is replaced by the following:

  • Marginal note:Evidence

    (2) For the purpose of this section, if the Tribunal finds, on a balance of probabilities, that a merger or proposed merger results or is likely to result in a significant increase in concentration or market share, the Tribunal shall also find that the merger or proposed merger prevents or lessens, or is likely to prevent or lessen, competition substantially, unless the contrary is proved on a balance of probabilities by the parties to the merger or proposed merger.

  • Marginal note:Significant increase in concentration or market share

    (3) A merger or proposed merger results or is likely to result in a significant increase in concentration or market share if, in any relevant market, as a result of the merger or proposed merger,

    • (a) the concentration index increases or is likely to increase by more than 100; and

    • (b) either

      • (i) the concentration index is or is likely to be more than 1,800, or

      • (ii) the market share of the parties to the merger or proposed merger is or is likely to be more than 30%.

  • Marginal note:Definition of concentration index

    (4) In subsection (3), concentration index means, in any relevant market, the sum of the squares of the market shares of the suppliers or customers.

  • Marginal note:Regulations — different values

    (5) The Governor in Council may by regulation prescribe different values than those provided in subsection (3).

• 250 (1) Paragraph 93(g.1) of the Act is replaced by the following:

  • (g.1) network effects within a market;

• (2) Section 93 of the Act is amended by striking out “and” at the end of paragraph (g.3) and by adding the following after that paragraph:

  • (g.4) the change in concentration or market share that the merger or proposed merger has brought about or is likely to bring about;

  • (g.5) any likelihood that the merger or proposed merger will or would result in express or tacit coordination between competitors in a market; and

251 Section 97 of the Act is replaced by the following:

252 Paragraph 98(b) of the Act is replaced by the following:

253 Section 100 of the Act is amended by adding the following after subsection (3):

• 254 (1) Subsections 103.1(1) and (2) of the Act are replaced by the following:

  Marginal note:Leave to make application under section 74.1, 75, 76, 77, 79 or 90.1

  • 103.1 (1) Any person may apply to the Tribunal for leave to make an application under section 74.1, 75, 76, 77, 79 or 90.1. 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 is sought under section 74.1, 75, 76, 77, 79 or 90.1, as the case may be.

• (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 is sought under section 74.1, 75, 76, 77, 79 or 90.1, as the case may be.

• (3) Subsection 103.1(4) of the Act is replaced by the following:

  • Marginal note:Application discontinued

    (4) The Tribunal is not to 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 74.1, 75, 76, 77, 79 or 90.1.

• (4) Subsection 103.1(7) of the Act is replaced by the following:

  • Marginal note:Granting leave — section 74.1

    (6.1) The Tribunal may grant leave to make an application under section 74.1 if it is satisfied that it is in the public interest to do so.

  • Marginal note:Granting leave — sections 75, 77, 79 or 90.1

    (7) The Tribunal may grant leave to make an application under section 75, 77, 79 or 90.1 if it has reason to believe that the applicant is directly and substantially affected in the whole or part of the applicant’s business by any conduct referred to in one of those sections that could be subject to an order under that section or if it is satisfied that it is in the public interest to do so.

• (5) Section 103.1 of the Act is amended by adding the following after subsection (7.1):

  • Marginal note:Granting leave — section 90.1

    (7.2) The Tribunal is not to consider an application for leave in respect of an application under section 90.1 that relates to an agreement or arrangement for which a certificate issued under subsection 124.3(1) is valid and registered.

• (6) 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 74.1, 75, 76, 77, 79 or 90.1 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.

• (7) 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 74.1, 75, 76, 77, 79 or 90.1 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 (6.1), (7) or (7.1), if the person granted leave has already applied to the Tribunal under one of those sections.