Governance Insights 2024
The competition landscape is shifting and trending toward an expansion of the Competition Bureau’s powers and potentially increased liability for companies. Both enacted and proposed changes to the Competition Act made a big splash in 2023 that will continue to ripple into 2024. Practitioners will be grappling with the first set of changes that came into effect on December 15, 2023, and preparing themselves for additional changes set to take effect on December 15, 2024, as well as others currently under consideration by Parliament. For a detailed summary of the recent and proposed changes to the Competition Act, see our bulletin A New Era for Canadian Competition Law: Landmark Proposed Changes to the Competition Act Announced . Our bulletin highlights a few of the recent amendments which: (i) expanded the scope of private litigation under the Competition Act ; (ii) increased the focus on anticompetitive collaborations, including the Competition Bureau’s power to prohibit anticompetitive vertical agreements; (iii) expanded the abuse of dominance provisions to include “excessive and unfair selling prices”; (iv) changed the merger review process, including repeal of the efficiencies defence; (v) added a new civil provision prohibiting certain “greenwashing” claims; and (vi) reduced the scope for cost awards against the Commissioner. We expect some growing pains in 2024 as the Competition Bureau seeks out test cases for its new powers, and as companies navigate the new rules. In addition, companies will need to evaluate their existing practices and consider how these new and proposed amendments may impact their current practices and how they think about, assess and manage competition risk. 6 | Competition Act Amendments Change the Game In addition to these changes, Canada has proposed revisions to the general anti-avoidance rule to expand its scope, and provide for the imposition of penalties where the general anti-avoidance rule is found to apply, unless reporting is made under the mandatory reporting rules or similar reporting is made voluntarily by the taxpayer. of aggressive tax planning: (i) a promoter or adviser being entitled to certain contingent fees based on the tax results; (ii) a promoter or adviser obtaining “confidential protection” with respect to the tax structuring; and (iii) the taxpayer or certain other persons obtaining “contractual protection” with respect to the tax consequences of the transaction. The notifiable transaction rules require reporting of certain listed categories of transactions, and transactions that are the same or substantially similar to these transactions. So far, the Canadian Revenue Agency (CRA) has identified five categories of notifiable transactions, but more may be added in the future. The CRA has provided some guidance to date on these rules that suggest it intends to apply these rules to a more limited set of circumstances than the rules may otherwise suggest. We expect the CRA to provide further guidance on these rules, which will hopefully further narrow the scope.
4
Davies | dwpv.com
Powered by FlippingBook