On May 18, 2011, the Competition Bureau released a new Fee and Service Standards Handbook for Written Opinions with updated guidance on required information, service times, and fees for binding written opinions. Section 124.1 of Canada’s Competition Act, which was added in 2002, gives the Commissioner the ability to issue a written opinion as to whether particular provisions of the Act would apply to the facts described in the application. These opinions are binding upon the Commissioner provided that all material facts have been disclosed.
The Bureau’s new Handbook aims to assist applicants in determining what material facts need to be disclosed. It provides non-exhaustive lists of required information for some of the most frequently reviewed provisions, including: s. 76 (price maintenance), ss. 77 to 79 (other civil reviewable practices including abuse of dominance), s. 90.1 (non-criminal agreements with competitors that substantially lessen or prevent competition), s. 45 (cartels, i.e., criminal competitor agreements), s.52 (misleading advertising), s. 52.1 (deceptive telemarketing), s. 53 (deceptive notice of winning a prize), and ss. 74.01 to 74.06 (civil deceptive marketing practices). The new Handbook reflects some recent changes to the Act, such as the addition of s. 90.1 and the corresponding “per se” nature of the cartel offence. It also makes some changes to the information required for certain provisions. For example, requests for written opinion for s. 45 and ss. 77 to 79 now require the submission of “any relevant agreement(s)”, a requirement not stipulated in the previous Handbook.
The new Handbook also outlines the “service standard” periods, i.e., the timeframes within which the Competition Bureau attempts to provide the requested opinions, which vary depending on the subject matter and the complexity of the issues raised in the application. The Bureau will classify the application as either “complex” or “non-complex” with 5 business days (of receipt of sufficient information to make such a determination). As in the previous Handbook, a written opinion for the more legally complicated sections dealing with competitor agreements, bid-rigging, or abuse of dominance will typically be processed within 6 weeks, but may take up to 10 weeks if the application is classified as “complex”. The new guidelines also clarify when a “complex” designation will be assigned: submissions that are “not straightforward” may be deemed complex, and if the applicability of more than one provision is being considered, the Handbook clarifies that “the longest service standard period will apply”. Significantly, written opinions for provisions in Part IX of the Act (dealing with merger notification questions), which previously enjoyed a shorter service standard period (2 weeks for non-complex, 4 weeks for complex), now fall under the general service standards (4 weeks for non-complex; 8 weeks for complex). Service standards will be paused if at any time if the Bureau requests more information from the applicant.
Finally, the Handbook updates the fee schedule for written opinions. The general pricing structure has not changed: an opinion for ss. 45 to 49, s. 79, or s. 90.1 will cost $15,000, the “fair business practices” provisions cost $1,000, and all other provisions cost $5,000, plus applicable tax (e.g., HST where adopted – taxes vary by province).
See the press release for the new Handbook here.