Fall Economic Statement Implementation Act, 2023 (S.C. 2024, c. 15)
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Assented to 2024-06-20
PART 5Various Measures (continued)
DIVISION 6Measures Related to Competition (continued)
R.S., c. C-34; R.S., c. 29 (2nd Supp.), s. 19Competition Act (continued)
255 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(6.1), (7) or (7.1) makes an application under section 74.1, 75, 76, 77, 79 or 90.1, the Commissioner may intervene in the proceedings.
256 (1) 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, 79 or 90.1, 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.
(2) Section 104 of the Act is amended by adding the following after subsection (1):
Marginal note:Effect of application for interim order
(1.1) If an application for an interim order is made under subsection (1) in respect of a proposed merger, the merger shall not be completed until the application has been disposed of by the Tribunal.
257 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, 79 or 90.1 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.
258 The Act is amended by adding the following after section 106.1:
Marginal note:Failure to comply with consent agreement
106.2 (1) If, on application by the Commissioner, the Tribunal determines that a person, without good and sufficient cause, the proof of which lies on the person, has failed to comply or is likely to fail to comply with a consent agreement registered under subsection 105(3) or 106.1(4), the Tribunal may
(a) prohibit the person from doing anything that, in the Tribunal’s opinion, may constitute a failure to comply with the agreement;
(b) order the person to take any action that is necessary to comply with the agreement;
(c) order the person to pay, in any manner that the Tribunal specifies, an administrative monetary penalty in an amount not exceeding $10,000 for each day on which they fail to comply with the agreement, determined by the Tribunal after taking into account any evidence of the following:
(i) the person’s financial position,
(ii) the person’s history of compliance with this Act,
(iii) the duration of the period of non-compliance, and
(iv) any other relevant factor; or
(d) grant any other relief that the Tribunal considers appropriate.
Marginal note:Purpose of order
(2) The terms of an order under paragraph (1)(c) are to be determined with a view to promoting conduct by the person that is in conformity with the purposes of this Act and not with a view to punishment.
Marginal note:Unpaid monetary penalty
(3) The administrative monetary penalty imposed under paragraph (1)(c) is a debt due to His Majesty in right of Canada and may be recovered as such from the person in a court of competent jurisdiction.
259 The Act is amended by adding the following after section 106.2:
Marginal note:Service of agreement on Commissioner
106.3 (1) If a person granted leave under section 103.1 makes an application to the Tribunal for an order under section 75, 76, 77, 79 or 90.1 and the person discontinues the application by reason of having entered into an agreement with any other person, the parties to the agreement must serve a copy of it on the Commissioner within 10 days after the day on which it was entered into.
Marginal note:Commissioner may intervene
(2) On application by the Commissioner, the Tribunal may vary or rescind the agreement if it finds that the agreement has or is likely to have anti-competitive effects.
Marginal note:Notice
(3) The Commissioner must give notice of an application under subsection (2) to the parties to the agreement.
Marginal note:Failure to serve
106.4 (1) If, on application by the Commissioner, the Tribunal determines that a person, without good and sufficient cause, the proof of which lies on the person, has failed to serve a copy of an agreement on the Commissioner in accordance with subsection 106.3(1), the Tribunal may
(a) order the person to serve the Commissioner with a copy of the agreement;
(b) issue an interim order prohibiting any person from doing anything that, in the Tribunal’s opinion, may constitute or be directed toward the implementation of the agreement;
(c) order the person to pay, in any manner that the Tribunal specifies, an administrative monetary penalty in an amount not exceeding $10,000 for each day on which they fail to serve a copy of the agreement on the Commissioner, determined by the Tribunal after taking into account any evidence of the following:
(i) the person’s financial position,
(ii) the person’s history of compliance with this Act,
(iii) the duration of the period of non-compliance, and
(iv) any other relevant factor; or
(d) grant any other relief that the Tribunal considers appropriate.
Marginal note:Purpose of order
(2) The terms of an order under paragraph (1)(c) are to be determined with a view to promoting conduct by the person that is in conformity with the purposes of this Act and not with a view to punishment.
Marginal note:Unpaid monetary penalty
(3) The administrative monetary penalty imposed under paragraph (1)(c) is a debt due to His Majesty in right of Canada and may be recovered as such from the person in a court of competent jurisdiction.
260 The Act is amended by adding the following after section 107:
PART VIII.1Matters Reviewable by a Court
Definitions
Marginal note:Definitions
107.1 The following definitions apply in this Part:
- court
court means the Federal Court or the superior court of a province. (tribunal)
- reprisal action
reprisal action means an action taken by a person to penalize, punish, discipline, harass or disadvantage another person because of that person’s communications with the Commissioner or because that person has cooperated, testified or assisted, or has expressed an intention to cooperate, testify or assist in an investigation or proceeding under this Act. (représailles)
Reprisal Action
Marginal note:Prohibition orders
107.2 If, following an application by the Commissioner or a person directly and substantially affected by an alleged reprisal action, a court concludes that a person is engaging, has engaged or is likely to engage in a reprisal action, it may make an order prohibiting the person from engaging in that action.
Marginal note:Administrative Monetary Penalties
107.3 If the court makes an order against a person under section 107.2 on the basis that the person is engaging in or has engaged in a reprisal action, it may also order them to pay an administrative monetary penalty, in any manner that the court specifies, in an amount not exceeding
(a) in the case of an individual, $750,000 and for each subsequent order, $1,000,000; or
(b) in the case of a corporation, $10,000,000 and for each subsequent order, $15,000,000.
Marginal note:Purpose of order
107.4 The terms of an order made against a person under section 107.3 are to be determined with a view to promoting conduct by that person that is in conformity with the purposes of this Act and not with a view to punishment.
Marginal note:Aggravating or mitigating factors
107.5 Any evidence of the following shall be taken into account in determining the amount of an administrative monetary penalty under section 107.3:
(a) the frequency and duration of the conduct;
(b) the vulnerability of the class of persons likely to be adversely affected by the conduct;
(c) the financial position of the person against whom the order is made;
(d) the history of compliance with this Act by the person against whom the order is made; and
(e) any other relevant factor.
Marginal note:Unpaid monetary penalty
107.6 The administrative monetary penalty imposed under section 107.3 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.
261 (1) Subsection 110(2) of the Act is replaced by the following:
Marginal note:Acquisition of assets
(2) Subject to sections 111 and 113, this Part applies in respect of a proposed acquisition of any of the assets in Canada and, if any, outside Canada, of an operating business if the aggregate value of the assets in Canada, determined as of the time and in the manner that is prescribed, or the gross revenues from sales in, from or into Canada generated from all the assets proposed to be acquired, determined for the annual period and in the manner that is prescribed, would exceed the amount determined under subsection (7) or (8), as the case may be.
(2) Subparagraph 110(3)(a)(ii) of the Act is replaced by the following:
(ii) the gross revenues from sales in, from or into Canada, determined for the annual period and in the manner that is prescribed, generated from all the assets that are owned by the corporation or by entities controlled by that corporation would exceed the amount determined under subsection (7) or (8), as the case may be; and
(3) Section 110 of the Act is amended by adding the following after subsection (3):
Marginal note:Acquisition of assets and shares
(3.1) If a proposed transaction would be completed through an acquisition of assets referred to in subsection (2) and shares referred to in subsection (3),
(a) the value of the assets calculated under subsection (2) and the value of the assets calculated under subparagraph (3)(a)(i) are to be aggregated for the purpose of determining if those assets exceed in aggregate value the amount determined under subsection (8); and
(b) the gross revenues calculated under subsection (2) and the gross revenues calculated under subparagraph (3)(a)(ii) are to be aggregated for the purpose of determining if those gross revenues exceed in aggregate value the amount determined under subsection (8).
(4) Paragraph 110(4)(b) of the Act is replaced by the following:
(b) the gross revenues from sales in, from or into Canada, determined for the annual period and in the manner that is prescribed, generated from all the assets that would be owned by the continuing entity that would result from the amalgamation or by entities controlled by the continuing entity would exceed the amount determined under subsection (7) or (8), as the case may be.
(5) The portion of subsection 110(5) of the Act before paragraph (a) is replaced by the following:
Marginal note:Combination
(5) Subject to sections 112 and 113, this Part applies in respect of a proposed combination of two or more persons to carry on business otherwise than through a corporation if one or more of those persons, or one or more of their affiliates, proposes to contribute to the combination assets that form all or part of an operating business carried on by those persons or affiliates, and if
(6) Paragraph 110(5)(b) of the Act is replaced by the following:
(b) the gross revenues from sales in, from or into Canada, determined for the annual period and in the manner that is prescribed, generated from all the assets that are the subject matter of the combination would exceed the amount determined under subsection (7) or (8), as the case may be.
(7) Subparagraph 110(6)(a)(ii) of the Act is replaced by the following:
(ii) the gross revenues from sales in, from or into Canada, determined for the annual period and in the manner that is prescribed, generated from all the assets that are the subject matter of the combination would exceed the amount determined under subsection (7) or (8), as the case may be; and
262 Paragraph 113(c) of the Act is replaced by the following:
(c) a transaction in respect of which the Commissioner or a person authorized by the Commissioner has waived, during the year preceding the day on which the transaction was completed, the obligation under this Part to notify the Commissioner and supply information because substantially similar information was previously supplied in relation to a request for a certificate under section 102; and
263 The portion of subsection 123.1(1) of the Act before paragraph (a) is replaced by the following:
Marginal note:Failure to comply
123.1 (1) If, on application by the Commissioner, the court determines that a person, without good and sufficient cause, the proof of which lies on the person, has completed or is likely to complete a proposed transaction before the end of the applicable period referred to in section 123 or without having given the notice or information required under subsection 114(1), the court may
264 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 74.1, 75, 76, 77, 79 or 90.1 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 VII.1 or 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.
265 The Act is amended by adding the following after section 124.2:
Agreements and Arrangements Related to Protecting the Environment
Marginal note:Certificate
124.3 (1) If the Commissioner is satisfied by a party or parties that propose to enter into an agreement or arrangement that it is for the purpose of protecting the environment and that it is not likely to prevent or lessen competition substantially in a market, they may issue a certificate that they are so satisfied.
Marginal note:Duty of Commissioner
(2) The Commissioner must consider any request for a certificate under this section as soon as practicable.
Marginal note:Duty of party or parties
(3) The party or parties seeking a certificate must, on request, provide to the Commissioner any information related to the agreement or arrangement.
Marginal note:Content of certificate
(4) The Commissioner must specify in the certificate the names of the parties to the agreement or arrangement as well as a description of the agreement or arrangement’s content.
Marginal note:Terms
(5) The Commissioner may specify in the certificate any terms that the Commissioner considers appropriate.
Marginal note:Period of validity
(6) The Commissioner must specify in the certificate its period of validity, which is not to exceed 10 years, and on request of the parties may extend that period for one or more additional periods not exceeding 10 years.
Marginal note:Registration
124.4 The Commissioner must file a certificate issued under subsection 124.3(1) with the Tribunal for immediate registration.
Marginal note:Non-application of sections 45, 46, 47, 49 and 90.1
124.5 Sections 45, 46, 47, 49 and 90.1 do not apply in respect of an agreement or arrangement that is the subject of a certificate issued under subsection 124.3(1) that is valid and registered.
Marginal note:Notice of termination
124.6 (1) The parties to an agreement or arrangement that is the subject of a valid certificate issued under subsection 124.3(1) must, within 15 days of the day on which they terminate the agreement or arrangement, give notice of the termination to the Commissioner and the Tribunal.
Marginal note:Rescission of certificate
(2) The Tribunal must, without delay after receiving the notice, rescind the certificate.
Marginal note:Rescission or variation of certificate
124.7 The Tribunal may rescind or vary a certificate issued under subsection 124.3(1) if, on application by the Commissioner, the parties to the agreement or arrangement that is the subject of the certificate or a person directly and substantially affected in the whole or part of their business by the agreement or arrangement, the Tribunal finds that
(a) the parties have terminated the agreement or arrangement without giving notice of the termination in accordance with subsection 124.6(1);
(b) the parties have agreed, with the Commissioner’s consent, to vary the agreement or arrangement;
(c) the agreement or arrangement is not being implemented in accordance with the description of it in the certificate;
(d) the parties have failed to comply with the terms specified in the certificate; or
(e) the agreement or arrangement prevents or lessens, or is likely to prevent or lessen, competition substantially in a market.
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