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Justine Johnston

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Justine Johnston is a senior associate in Baker McKenzie’s International Commercial Practice Group and the Global Antitrust & Competition Group, focusing on competition/antitrust law and foreign investment review.

Justine has been recognized in WWL's Competition Future Leaders - Non-Partners 2023 category.

The Canadian Competition Bureau (“Bureau”) has announced a significant initiative to explore the effects of artificial intelligence (“AI”) on competition in Canada. On 20 March 2024, the Bureau published a discussion paper, entitled “Artificial intelligence and competition” (“Discussion Paper”), and has requested feedback from the public. The Bureau is seeking to better understand how AI can affect competition in Canada. Submissions are due by 4 May 2024.

The Government of Canada has announced the 2024 financial thresholds for pre-merger notification and clearance under the Competition Act, and for pre-closing, “net benefit” review and approval under the Investment Canada Act (“ICA”). While the Competition Act “size of transaction” financial threshold remains the same, the ICA financial thresholds have increased. Significantly, this is the third year in a row that the Competition Act financial threshold has remained unchanged at CAD 93 million in a bid to maintain the number of transactions subject to review by the Commissioner of Competition.

Long-awaited reforms to the Canadian Competition Act (“Act”) have arrived and represent the most comprehensive amendments to the Act in over a decade. Recent and proposed amendments to the abuse of dominance provisions are likely to have a significant impact on how businesses operating in Canada assess and manage risk.

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.

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.

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.