Competition Bureau Bulletin on Amendments to Abuse of Dominance Provisions CBA

INTRODUCTION The Competition Law and Foreign Investment Review Section of the Canadian Bar Association (CBA Section) welcomes the opportunity to submit preliminary comments on the Draft Bulletin on Amendments to the Abuse of Dominance Provisions (Draft Bulletin) issued for consultation on October 25, 2023 as a supplement to the Abuse of Dominance Enforcement Guidelines.1 The Canadian Bar Associati. [...] With the enactment of significant amendments to the abuse of dominance provisions in the Competition Act in Bill C-56, the Affordable Housing and Groceries Act on December 15, 2023, we offer provisional commentary on the Draft Bulletin with the expectation that the Bureau will need to consult on further guidance to address amendments in Bill C-56 and any future amendments resulting from Bill C-59,. [...] The rigid language in the Draft Bulletin contrasts with the Competitor Collaboration Guidelines,3 which state that the Bureau will “determine, based on evidence in its possession or to be gathered, whether the criminal provision in section 45 or the civil agreements provision in section 90.1 is applicable”.4 There is no reason to adopt a different approach in the context of the abuse of dominance. [...] Paragraph 61 of the Draft Bulletin states “we may seek higher AMPs than were possible prior to the amendments.” The Bureau’s ability to seek higher AMPs than were possible prior to the amendments increases the risk of overstepping its statutory purpose – the promotion of conduct that is in compliance with the abuse of dominance provisions12 – and straying into punitive measures. [...] Submission of the Competition Law and Page 13 Foreign Investment Review Section of the Canadian Bar Association In addition, if the Bureau intends to communicate that the parties misled (or attempted to mislead) the Bureau by stating that the parties “maintain that the terms of the Venture are limited to installing and servicing COMMS and do not address joint selling or pricing”, and then stating.