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Arlan W. Gates

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Arlan Gates practices commercial and regulatory law as a member of Baker McKenzie's Global International Commercial & Trade and Antitrust & Competition groups. He leads the Canadian Antitrust, Competition and Foreign Investment Practice, which has been ranked by The Legal 500 and Chambers Canada. He is also ranked by Chambers Canada and by Best Lawyers in the area of advertising, marketing and data protection law and leads the Canadian Advertising, Marketing and Regulatory Practice, providing support to domestic and international businesses on regulatory aspects of market entry and ongoing commercial operations in Canada and abroad. Arlan joined Baker McKenzie as a summer associate in 1999 and has also worked in the Firm's Sydney office.

Modernization of Canadian competition law and foreign investment review is well underway. Recent and further proposed legislative amendments will impact how dealmakers assess substantial and procedural regulatory risk for mergers. This update summarizes the recent legislative amendments to the Competition Act (Act) that came into effect on 15 December 2023 and proposed legislative amendments to the Act and Investment Canada Act. Dealmakers should be aware of these amendments as they plan mergers involving Canadian businesses in 2024.

In 2023, the Government of Canada focused on modernizing Canada’s Competition Act and Investment Canada Act, proposing legislation that will overhaul existing legislative frameworks. Looking forward, we expect the Government will continue its modernization agenda and the respective authorities will continue to take strong enforcement positions against perceived anti-competitive conduct and investments that raise potential national security concerns in 2024.

On 21 September 2023, the Government of Canada introduced Bill C-56 or the Affordable Housing and Groceries Act (“Bill C-56”), broad legislation that includes amendments to the Competition Act that, if adopted, will repeal the efficiencies defense in mergers, expand the scope of agreements and arrangements subject to the civil competitor collaboration provision, and permit public interest market studies. The proposed amendments to the Competition Act align with the Prime Minister’s recent announcement that the federal government would take action to enhance competition and drive down prices for Canadians, with a special focus on the grocery sector.

It is frequently observed that children are especially impacted by advertising, and special attention must be paid when marketing to them. Historically, with the exception of Quebec, which has prohibited virtually all forms of commercial advertising directed at children under the age of 13 since 1980, Canada did not specifically restrict advertising targeted at children. However, driven by growing concerns due to increases in obesity and chronic diseases, plans have now emerged to tackle these issues, including three recent developments enacted by the food and beverage industry, the federal Parliament, and Health Canada, respectively.

The Canadian Competition Act was recently amended to, among other things, criminalize wage-fixing and no-poach agreements between unaffiliated employers. Following a one-year grace period that permitted Canadian employers to ensure they are in compliance, the criminal prohibition will come into effect on 23 June 2023.

In June 2023, amendments to the Competition Act take effect that will allow Canadian employees to sue their employers for conspiratorial conduct. In this video, baker McKenzie Litigation and Competition lawyers reflect on the new buy-side conspiracy causes of action through the lens of a recent Federal Court of Appeal case, consider the expected implications of the new amendments on employers’ class action exposure, and discuss what employers can do to mitigate these new risks.

On 7 December 2022, Minister François-Philippe Champagne, Minister of Innovation, Science and Industry, announced the Canadian government introduced legislation to amend the Investment Canada Act, known as the National Security Review of Investments Modernization Act. While the proposed amendments at first appear to be a dramatic overhaul of the existing national security review framework for foreign investment in Canada, they are generally consistent with other recent legislative amendments and policy developments related to Canada’s national security, and with trends in other jurisdictions. The proposed changes heighten the importance of proactive planning to address national security risks arising in commercial transactions and other forms of foreign investment.

The Government of Canada has amended the federal Competition Act, Canada’s consolidated antitrust statute, to criminalize wage-fixing and no-poach agreements between employers, effective 23 June 2023. The criminal prohibition will apply to all employers, and is not limited only to those in competing sectors or industries. Employers who contravene the new prohibition against labor-related collusion risk incurring significant fines, the potential for imprisonment, or both, and heightened private and class action litigation risk.

Amendments to the Competition Act that come into force on 23 June 2023 will make it a criminal offense for employers to enter into no poach, wage fixing or other agreements related to the terms and conditions of employment in Canada. In this In Focus video, our Labor and Employment and Competition and Foreign Investment Review lawyers discuss the risks associated with non-compliance and what employers should consider as they prepare for the prohibition to come into effect.

Baker McKenzie was invited to serve as the global editor of the Chambers Advertising & Marketing 2022 Practice Guide which features 8 high-profile jurisdictions and provides the latest legal information on the impact of the COVID-19 pandemic, advertising claims and clinical studies, comparative advertising, social/digital media, influencer campaigns, consumer promotions, sports betting/gambling, and cryptocurrency and non-fungible tokens.