This enactment amends the Competition Act to increase penalties for certain anti-competitive acts. It also changes aspects of the review of mergers, including how gains in efficiency and market concentration are taken into account. In addition, it requires the Competition Tribunal to make an order dissolving a completed merger or prohibiting the merger from proceeding if the merger would result in excessive combined market share. The limitation period for the review of mergers is increased from one year to three years. Finally, it amends the Competition Tribunal Act to remove the Tribunal’s ability to award costs against the Crown.

His Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

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  (iv) a market study and reports on market conditions would provide insight into factors that are relevant to competition, or

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Penalty

(2) Every person who commits an offence under subsection (1) or (1.‍1) is guilty of an indictable offence and liable on conviction to imprisonment for a term not exceeding 14 years or to a fine Insertion start not exceeding the greater of the following, or to both imprisonment and fine Insertion end :

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  (a) $25,000,000, and

• (b) three times the value of the benefit derived from the conspiracy, agreement or arrangement or, if that amount cannot be reasonably determined, 10% of the person’s annual worldwide gross revenues.

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• and every director, officer or employee of the federal financial institution who knowingly makes such an agreement or arrangement on behalf of the federal financial institution is guilty of an indictable offence and liable to a fine not exceeding Insertion start twenty-five Insertion end million dollars or to imprisonment for a term not exceeding Insertion start fourteen Insertion end years or to both.

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  (k) directly or indirectly imposing excessive and unfair selling prices.

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Additional or alternative order

(2)  Insertion start If, Insertion end on an application under subsection (1), the Tribunal Insertion start also Insertion end finds that a practice of anti-competitive acts has had or is having the effect of preventing or lessening competition substantially in a market and that an order under subsection (1) is not likely to restore competition in that market, the Tribunal may, in addition to or in lieu of making an order under subsection (1), make an order directing any or all the persons against whom an order is sought to take such actions, including the divestiture of assets or shares, as are reasonable and as are necessary to overcome the effects of the practice in that market.

• (a)  Insertion start $25,000,000 Insertion end and, for each subsequent order under either of those subsections, an amount not exceeding Insertion start $35,000,000 Insertion end , and

• (b) three times the value of the benefit derived from the anti-competitive practice, or, if that amount cannot be reasonably determined, Insertion start 10% Insertion end of the person’s annual worldwide gross revenues.

Factors to be considered

(4) In determining, for the purposes of subsection ( Insertion start 2 Insertion end ), whether a practice has had, is having or is likely to have the effect of preventing or lessening competition substantially in a market, the Tribunal shall consider whether the practice is a result of superior competitive performance and may consider

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  (g.‍4) whether the agreement or arrangement has brought about or is likely to bring about gains in efficiency that will be greater than, and will offset, the effects of any prevention or lessening of competition that will result or is likely to result from the agreement or arrangement; and

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Restriction

(5) For the purposes of Insertion start paragraph (2)‍(g.‍4) Insertion end , the Tribunal shall not find that Insertion start the Insertion end agreement or arrangement has brought about or is likely to bring about gains in efficiency by reason only of a redistribution of income between two or more persons.

Factors to be considered

(6)  Insertion start In having regard to Insertion end whether an agreement or arrangement is likely to bring about gains in efficiency described in Insertion start paragraph (2)‍(g.‍4), Insertion end the Tribunal shall consider whether such gains will result in

Order — greater than 60% combined market share

91.‍1 (1) Where, on application by the Commissioner, the Tribunal finds that a merger or proposed merger has resulted or is likely to result in a combined market share of 60% or more, the Tribunal shall, as the case may be, order the parties to the merger or any other relevant person to dissolve the merger in such manner as the Tribunal directs or make an order against them not to proceed with the merger.

Order — 30% to 60% combined market share

91.‍2 (1) Where, on application by the Commissioner, the Tribunal finds that a merger or proposed merger has resulted or is likely to result in a combined market share of 30% to 60%, the Tribunal shall, as the case may be, order the parties to the merger or any other relevant person to dissolve the merger in such manner as the Tribunal directs or make an order against them not to proceed with the merger.

Exception — procompetitive outcomes

(2) The Tribunal may decide not to make an order under subsection (1), if the parties to a merger or proposed merger establish on a balance of probabilities that the merger or proposed merger has resulted in or is likely to result in substantial procompetitive outcomes, including reductions in prices, increases in supply, reductions of anti-competitive acts, increases in quality of goods or services, increases in wages and increases in consumer choice and consumer protection.

• the Tribunal may, subject to sections 94 Insertion start and 95 Insertion end ,

Presumption

(2) For the purpose of this section, Insertion start if the Tribunal finds, on a balance of probabilities, that a merger or proposed merger will cause a significant increase in concentration or market share, Insertion end the Tribunal shall Insertion start also Insertion end find that the merger or proposed merger prevents or lessens, or is likely to prevent or lessen, competition substantially, Insertion start unless the contrary is proved on the balance of probabilities by the parties to the merger or proposed merger Insertion end .

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  (g.‍4) whether the merger or proposed merger has brought about or is likely to bring about gains in efficiency that will be greater than, and will offset, the effects of any prevention or lessening of competition that will result or is likely to result from the merger or proposed merger; and

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Restriction

(2) For the purposes of paragraph (1)‍(g.‍4), the Tribunal shall not find that a merger or proposed merger has brought or is likely to bring about gains in efficiency by reason only of a redistribution of income between two or more persons.

Factors to be considered

(3) In having regard to whether a merger or proposed merger is likely to bring about gains in efficiency described in paragraph (2)‍(g.‍4), the Tribunal shall consider whether such gains will result in

• (a) a significant increase in the real value of exports; or

• (b) a significant substitution of domestic products for imported products.

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Limitation period

97 No application may be made under section 92 in respect of a merger more than Insertion start three years Insertion end after the merger has been substantially completed.