Best Competition lawyers in Canada as ranked by Lexpert
Competition lawyers in Canada falls into two broad but distinct categories: solicitor (advisory) work (which includes merger analysis); and litigation.
Solicitor (Advisory) Work: Providing advice on Competition Law issues is an increasingly important part of advising business clients. Competition lawyers are called upon to advise clients on the competition law implications of a variety of business activities. By identifying and helping clients to address these issues, competition lawyers assist clients in managing and minimizing competition law risk. The best competition lawyers provide advice with respect to corporate and commercial matters and day to day business practices. They are also advocates for clients in discussions with Competition Bureau officials. Principal areas of advice and representation include: mergers and acquisitions; strategic alliances and joint ventures; marketing and distribution activities; relations with customers, competitors and suppliers; and, increasingly, the interface between competition law and intellectual property law.
Competition Litigation: Competition litigation in Canada has traditionally involved representing clients before the courts on criminal matters and before the Competition Tribunal on civil proceedings initiated by the Commissioner of Competition. While there was limited private competition litigation in Canada in the years immediately following the enactment of the Competition Act in 1986, this type of proceeding has become more common with the advent of competition law class actions. Recent amendments permitting limited private access to the Competition Tribunal, and proposals to expand private access, are likely to lead to further private competition litigation in Canada.
What is competition law?
Competition law is the branch of law that seeks to protect consumer welfare by regulating competition among corporations or companies. It ensures that businesses are given fair and equal opportunities to compete in a given market for goods and services by prohibiting anti-competitive conduct by these corporations or companies.
Competition law may be also known as anti-monopoly law, anti-cartel law, or anti-trust law. Competition lawyers who specialise in this field of law assist businesses and consumers alike with their dealings with or litigations against violators of the competition law.
What are the best competition lawyers trying to do?
The main objective of competition law is to promote healthy, fair, and equal competition among businesses. It levels the playing field by regulating the acts of these businesses, especially against monopolising, cartelising, and other specific acts under criminal law or civil law.
What principles are competition lawyers looking to uphold?
Competition lawyers ensure that the following principles are embodied in companies or corporations they work for to prevent stringent legal battles with government enforcers.
What is the Canadian Competition Act and its goals?
The Competition Act is the main federal law in Canada which governs and regulates competition law among business sectors. It is the Act which provides for “general regulation of trade and commerce in respect of conspiracies, trade practices and mergers affecting competition”.
The Act contains both criminal and civil offenses, which are enforced by the Competition Bureau under the administration of the Commissioner of Competition. Cases filed against violators are adjudicated by the Competition Tribunal, whose decisions are appealable to the Federal Court of Appeal. For competition lawyers, this Act is the bedrock of all laws with regards to Canadian competition law.
The Act aims to foster the viability of Canadian economy, ensuring that competition is not proliferated with unwarranted and illegal acts of businesses, and that promotes growth of small- and medium-sized enterprises by providing them equal opportunity as that with the large corporations. Moreso, it protects consumers from overwhelming prices and a providing them with a variety of products to choose from.
Like any other Canadian laws, the Act is subject to ongoing reforms by policymakers for it to become relevant in light with the growing worldwide economy.
What are prohibited under the Competition Act?
The prohibitions and restrictions of the Canadian Competition Act can be divided into three categories – Mergers, Criminal Provisions, and Civil Reviewable Practices. As such, competition lawyers are knowledgeable in one or all these categories.
Mergers (Part VIII and Part IX, Competition Act)
Pre-merger notification and the substantive review of mergers
A merger is defined in Section 91 of the Act as the direct or indirect acquisition or establishment by one or more persons of control or significant interest in whole or a part of a business of a competitor, supplier, customer or other person.
Mergers may be done either through:
Generally, the Competition Bureau must be notified of mergers that have exceeded certain thresholds as provided in the Act. Otherwise, the said Bureau has the right to question any merger prior to its completion and for one year after its completion, unless it has been issued an advance ruling certificate. As such, it is best to consult with the best competition lawyers before going into a merger or acquisition.
Criminal Provisions
Cases falling under the criminal provisions of the Competition Act are tried in criminal courts of Canada, where the best competition lawyers may capably represent both accused violators, or the aggrieved party or parties.
Conspiracy (section 45)
Conspiracy exists when two parties – usually competitors – agree or arrange, written or unwritten, to either: fix, maintain, increase or control prices; allocate sales, territories, customers or markets; or fix or control the production or supply of a product.
Bid-rigging (section 47)
Bid-rigging generally manipulates results of biddings to favor one party in exchange for something. Unless the agreement is made before the bids are submitted, bid-rigging is committed in the following ways:
Deceptive marketing
Under several provisions of the Act, numerous prohibitions are laid out against deceptive marketing, falling under the general prohibition on false representations.
Civil Reviewable Matters
Certain acts or conducts of companies may be reviewed by the Competition Tribunal through the instance of any private party or by the Competition Bureau. Because these are not illegal per se but are reviewable if it becomes anti-competition, companies may check with our Lexpert-ranked competition lawyers when such acts or conducts becomes reviewable.
Refusals to deal (section 75)
There are refusals to deal when a prospective customer’s business is affected because of inadequate supplies anywhere in a market, even though the customer has been able to meet the usual trade terms of suppliers.
A form of this conduct is called tied selling when there’s a refusal of a supplier to deal with a customer, unless conditions imposed by the supplier are followed by the customer.
Price maintenance (section 76)
There is price maintenance when a supplier controls the prices that a seller put on their products, by agreement, threat or promise; or when a seller is refused supplies because of the low pricing policy of the seller.
Exclusive dealing (section 77)
Exclusive dealing occurs when a supplier, as a condition of supply, requires a customer to deal only or primarily in products supplied or designated by the supplier, or refrain from dealing in a specified product except as supplied by the supplier. Exclusive dealing includes inducing a customer to agree to these conditions by offering to supply the customer on more favourable terms.
Vertical market restriction occurs when a supplier, as a condition of supply, requires a customer to supply a product only in a defined market, or exacts a penalty from the customer if the product is supplied outside a defined market.
Abuse of dominant position (sections 78 and 79)
There is abuse of dominant position when a companies or corporations has dominant control over relevant markets in or a part of Canada, which is/are engaged in anti-competitive acts as enumerated under Section 78.
Criminal misleading representations (section 52) and Civil misleading representations (section 74.01)
Misleading representations are both criminal and civil in nature and exists when there are false or misleading claims about the efficacy or quality of a product.
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