In our annual forecast of the year ahead for Canadian competition and foreign investment review law, we evaluate how developments in 2016 will influence the business landscape in 2017. Our top issues and trends to watch this year include the following:
Liberalization of the foreign investment review regime.
The federal government is taking steps to create a friendlier climate for foreign investment in Canada. Particularly noteworthy is a significant and early increase in the “net benefit” review threshold. The long-awaited Guidelines on the National Security Review of Investments, published in late 2016, may help to address criticisms of the Investment Canada Act’s national security review process.
Further testing of the scope of abuse of dominance provisions by the Commissioner of Competition. The Federal Court of Appeal’s anticipated decision on the abuse of dominance case against the Toronto Real Estate Board may bring the matter to a close. The Commissioner’s recent case against the Vancouver Airport Authority involves some similar legal issues and will be closely watched.
Continued enforcement focus on the digital economy and other innovative industries. In 2016, the Bureau increased its focus on enforcement in innovative markets, and we expect this to continue in 2017. Companies in the high-innovation sector should not consider themselves above scrutiny in 2017, even if their industries are currently highly competitive.
An increasing focus on bid-rigging, especially in infrastructure. The Bureau has signalled that it intends to increase its efforts regarding bid-rigging, especially in public infrastructure projects, by expanding its outreach activities and employing “innovative data-screening mechanisms” to detect potentially inappropriate conduct.
The Bureau’s heightened scrutiny of possible deceptive marketing in electronic media. A new private right of action in Canada’s anti-spam legislation that comes into force in 2017 – along with the Bureau’s continued focus on deceptive marketing in electronic media as an enforcement priority – mean digital marketers can expect greater oversight on their activities.
The streamlining of the Tribunal process. In 2016, mediation was used for the first time in a contested hearing before the Tribunal, leading to an early resolution. We expect the Tribunal, the Bureau and the bar to continue to explore new ways to streamline the process in 2017.
A shift to more merger litigation. With the merger review process becoming longer, more burdensome and less predictable, it’s likely we will see more reviews result in litigation.