A Year Of Significant Change: From "Per Se" To "Made In Canada".

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A Year Of Significant Change: From "Per Se" To "Made In Canada".

In 2009, Canada made significant amendments to its competition and foreign investment laws, including introducing a "per se" criminal offence for conspiracies and emulating aspects of the pre-merger notification system in the United States. The Canadian Competition Bureau ("Bureau") engaged in numerous consultations and adopted new policies in response to the new legislation. It continued an active enforcement agenda to combat both domestic and international cartels as well as deceptive and misleading advertising, and used its enhanced merger review powers in a handful of significant transactions. Some highlights of 2009 include:

The Government of Canada passing the most significant amendments to the Competition Act (the "Act") since its enactment in 1986, including:

A new "per se" criminal offence for conspiracy (section 45) and a new reviewable practice for agreements among competitors (section 90.1) that will come into effect on March 12, 2010;

A new U.S.-style two-stage (second request) process for merger reviews;

Increased thresholds for pre-merger notification; and

Decriminalizing pricing practices (including price maintenance) to afford firms greater flexibility in dealing with their customers.

The Bureau issuing new guidelines, including on: (a) the merger review process and (b) competitor collaboration. Draft guidelines on (i) leniency in cartel cases and (ii) abuse of dominance were also released for public comment;

The Competition Tribunal ("Tribunal") issuing a key decision clarifying the scope of refusal to deal under section 75;

Firms making strategic use of the Act to prevent competitors from making misleading comparative product claims; and

Several Can...

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