CHAPTER 07 Competition Law
Civil matters under the CA (non-reviewable practices) are generally adjudicated by the Competition Tribunal (Tribunal), which is a specialized administrative body composed of judges of the Federal Court (Trial Division) and lay members. Criminal offences under the CA are prosecuted in the regular criminal courts. Criminal Offences Under the Competition Act CONSPIRACY The CA contains a number of criminal offences, the most significant of which is the conspiracy offence. This offence prohibits agreements between competitors (or potential competitors) to fix or increase prices; to allocate sales, customers, territories or markets; and to fix or lessen production or supply of a product. As of June 2023, it is also a criminal offence under the CA for unaffiliated employers to agree, conspire or arrange to (i) fix, maintain, decrease or control salaries, wages or terms and conditions of employment; or (ii) not solicit or hire each other’s employees. The Bureau has published guidance on how it intends to enforce these new employment-specific criminal conspiracy provisions.
Proof that the agreement would be likely to lessen competition is not required. Liability may be avoided, however, if the agreement is “ancillary” to a broader agreement that does not contravene the conspiracy offence and is reasonably necessary to give effect to the objective of that broader agreement. Similarly, the “regulated conduct” defence provides a form of immunity from the application of the CA for conduct that is mandated or authorized by provincial or federal legislation, if certain conditions are met. As discussed below, the CA also contains civil provisions dealing with other agreements between competitors that prevent or lessen competition substantially. The Bureau has issued Competitor Collaboration Guidelines , which describe the Bureau’s approach to determining whether to assess an agreement or collaboration between competitors under the criminal conspiracy provisions or the civil agreements provisions (or other provisions of the CA). These Guidelines indicate that the Bureau intends to apply the criminal provisions only to “naked restraints” on competition falling into the categories enumerated above, which are described as “restraints that are not implemented in furtherance of a legitimate collaboration, strategic alliance or joint venture.” All other types of restraints that could be anticompetitive in nature are potentially subject to review under the civil agreements provisions discussed below. As of June 2023, it is also a criminal offence under the Competition Act for unaffiliated employers to agree, conspire or arrange either to fix, maintain, decrease or control salaries, wages or terms and conditions of employment; or to not solicit or hire each other’s employees.
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