In our annual forecast of the year ahead in Canadian competition and foreign investment review, we evaluate how developments in 2017 will influence these areas of law in 2018. Top issues and trends to watch for this year include:

  • New leadership at the Bureau and a year of transition. The year 2018 will be one of transition at the Bureau, with Commissioner John Pecman’s five-year term expiring and a new Commissioner to be appointed. Whoever is chosen will direct the Bureau’s policies and priorities and have a significant impact on many of the trends discussed in this report.
  • Digital economy likely to continue to be a priority. The Bureau devoted considerable thought and resources to digital economy issues in 2017, and we expect this area to continue to be a priority for both advocacy and enforcement activities in 2018. We also expect the Bureau to remain active in enforcement efforts against online deceptive marketing practices.
  • Possible clarifications of Canada’s anti-spam law (CASL). The fast-tracking of the parliamentary review in 2017 indicates that the government continues to prioritize CASL and suggests that 2018 may see some much-needed progress toward clearer guidance about its scope and application, as well as possible legislative changes.
  • Increase in merger review fee and other process changes are likely. As the number and length of merger reviews designated “complex” continues to climb, calls for changes to the Bureau's merger review process may grow louder. The Bureau's announcement that it is seeking approval to increase the flat fee for both pre-merger notifications and advance ruling certificate requests for the first time since 2003 may provide an opportunity for further constructive dialogue on potential improvements to increase the efficiency and transparency of the Bureau’s merger review process.
  • Guidance expected on the merger efficiencies defence. The Bureau is expected to publish revised guidelines that would clarify its approach to the merger efficiencies analysis. In particular, the guidance is expected to explain how the Bureau approaches such issues as the quantification of potential price and non-price anticompetitive effects and the impact of mergers on dynamic efficiency and innovation.
  • Technical amendments to the Competition Act on "affiliates" likely to pass. A long-awaited set of technical amendments to the Competition Act is expected to be enacted in 2018. These amendments are intended to broaden the Competition Act’s affiliation rules to apply equally to various forms of business entities, including corporations, partnerships and trusts.
  • Possible changes to the immunity program. Under proposed changes released in October 2017, the program would permit the Bureau to record proffers and witness interviews, create a new “interim” stage during which the applicant would receive only conditional immunity (with full immunity granted only after the Public Prosecution Service of Canada is satisfied that the applicant’s cooperation is no longer required) and require more comprehensive disclosure. These changes could have a chilling effect that would reduce the effectiveness of the program, making it more difficult for the Bureau to detect conspiracies.
  • Further developments in ongoing abuse of dominance cases. The Toronto Real Estate Board (TREB) has sought leave from the Supreme Court of Canada to appeal the Federal Court of Appeal’s latest decision in the Commissioner’s litigation against TREB. Meanwhile, the Competition Tribunal’s hearing of the Commissioner’s case against the Vancouver Airport Authority is expected to begin in 2018.
  • The Bureau’s evolving disclosure obligations and nature of its public interest privilege. In late January, the FCA ruled that the Commissioner can no longer claim privilege over entire categories of documents and must instead establish that each document meets the conditions for a claim of public interest privilege individually.
  • The Investment Canada Act process: fewer net benefit reviews. Because of the increased threshold that now applies to many foreign investors, including those from Europe and the United States, we expect that net benefit reviews will be less common in 2018.