CHAPTER 07 Competition Law
The Bureau’s Competitor Collaboration Guidelines provide that the criminal conspiracy provisions (discussed above) will be reserved for the “most egregious” forms of agreements between competitors, while other forms of competitor collaborations (e.g., joint ventures, dual-distribution agreements) may be subject to review under the civil provision in section 90.1. However, there has been limited enforcement action under the civil provision to date. MISLEADING ADVERTISING Misleading advertising can also be reviewed under the civil provisions of the CA where the requisite criminal level of culpability discussed above (“knowingly or recklessly”) is not present. This is an active area of enforcement for the Bureau. At a high level, the CA prohibits representations to the public for the purpose of promoting any business interests that are false or misleading in a material respect. Specific requirements for supporting evidence apply to certain types of claims, including representations about the performance of a product or service or the ordinary selling price of
a product or service. The 2022 amendments to the CA also codified criminal and civil prohibitions of “drip pricing” – that is, “the making of a representation of a price that is not attainable due to fixed obligatory charges or fees” imposed by a seller. When a person is found to have violated the civil misleading advertising prohibitions, the Tribunal may, on application by the Commissioner, make an order prohibiting the practice and requiring the person to pay an administrative monetary penalty of up to three times the value of the benefit derived from the deceptive conduct, among other remedies. OTHER NON-CRIMINAL REVIEWABLE MATTERS Other non-criminal reviewable matters under the CA include types of vertical restraints – that is, exclusive dealing, tied selling, market restriction and refusal to deal. These prohibitions apply where the practice in question has a negative impact on competition (such as a “substantial lessening of competition” or an “adverse effect on competition”). The 2022 amendments to the Competition Act codified criminal and civil prohibitions of “drip pricing” – that is, “the making of a representation of a price that is not attainable due to fixed obligatory charges or fees” imposed by a seller.
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